Anil Kumar Gupta vs Municipal Corporation Of Delhi ...
2003 Latest Caselaw 583 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The challenge to the jurisdiction of the Municipal Corporation of Delhi to prescribe the norms and the premises for manufacture of packed drinking water, has given rise to these petitions.

2. The petitioners are all manufacturers of packed drinking water and are running the units within the jurisdiction of the respondent MCD. Respondent No. 4 Bureau of Indian Standards stated to be the Competent Authority under the rules framed in terms of Section 23 of the Prevention of Food Adulteration Act 1954 (hereinafter to be referred to as 'the PFA Act') to certify the standard, conditions of preparation of packaged drinking water as also its processing and manufacturing. Respondent No. 5 Union of India issued a notification in the Gazette of India dated 29th September, 2000 amending the rules for the same through Prevention of Food Adulteration (Amendment) Rules, 2000 to lay down the standards for the packaged drinking water (other than mineral water).

3. The petitioners applied for a license to the respondent No. 4 Bureau under the Bureau of Indian Standards Act, 1986 and were issued an appropriate license, The specifications are provided under the Indian Standards for Packaged Drinking Water (other than packaged natural mineral water). Para 3.2 of the said standards defines packaged drinking water as under:

"3.2. Packaged Drinking Water (Other than packaged Natural Mineral Water)

Drinking water filled in hermetically sealed containers of various compositions, forms and capacities that is suitable for direct consumption without further treatment."

4. The treatment of the said water is prescribed in para 4 as under:

"4. Treatment

4.1. Water intended for packaging may be subjected to treatment namely, decantation, filtration, combination of filtrations, aeration, filtration with membrane filter depth filter, cartridge filter, activated carbon filtration, demineralization, reverse osmosis.

4.2. The drinking water may be disinfected to a level that will not lead to harmful contamination in the drinking water.

5. The standards in fact encompass a wide area of prescriptions including hygienic conditions, packaging, marking etc. Under the heading of hygienic practices which is annexure B, the norms for collection of drinking water, protective measures, protection of area of origin, transport including maintenance of vehicles and reservoirs, buildings and facilities including handling, storing and bottling areas have been prescribed. Thus, even the detailed norms for the nature of the floors, walls, ceilings, windows, doors, stairs, lift cages and auxiliary structures have been prescribed. The personal hygiene and health requirements of the personnel are also specified.

6. Respondent No. 4 Bureau also carries out periodic inspections to verify that the standards prescribed by it are being met within the comprehensive code and norms have been laid down as a condition for the grant of license by respondent No. 4.

7. The petitioners received notices issued by the Deputy Health Officer of the Zones concerned under Sections 417/420 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as 'the DMC Act'). It is stated in the said notices that the petitioners were running a trade of mineral water manufacturing plant without a municipal license from the Health Department of the Municipal Corporation of Delhi under unsanitary and unhygienic conditions prejudiced to public health and trade. Such a license is stated to be a requirement ad since the petitioners have not stopped the trade, the petitioners should now close down the trade within 24 hours of the receipt of the notice failing which necessary action shall be taken for stoppage of the trade as per provisions of law. These notices were impugned by the petitioners. In some of the petitions, the notices are under challenge while in another set of petitions, it is the order passed by the Deputy Commissioner which are under challenge. This is so as in respect of some petitioners who had earlier filed the writ petition, the matter had been directed to be considered by the Deputy Commissioner of the zone concerned who thereafter passed the order. The six writ petitions of the year 2002 thus seek to challenge the notice under Sections 417/420 of the Act while the four petitions of the year 2003 challenged the order passed which is almost identical in all the cases.

8. The concerned authorities while passing the orders in pursuance to the directions of the Court have considered the plea of the petitioners that they had been granted license to use the bids Certificate. However, it was found that the said plea was not relevant since the same did not amount to a right to run industrial units in residential areas. In this behalf, the concerned authority has taken note of Section 416 of the DMC Act which is as under:

"416. Factory, etc., not to be established without permission of the Commissioner--(1) No person shall, without the previous permission in writing of the Commissioner, establish in any premise, or materially alter, enlarge or extend, any factory, workshop or trade premises in which it is intended to employ steam, electricity, water or other mechanical power.

(2) The Commissioner may refuse to give such permission, if he is of the opinion that the establishment, alteration, enlargement or extension of such factory, workshop or trade premise, in the proposed position would be objectionable by reason of the density of the population in the neighborhood thereof, or would be a nuisance to the inhabitants of the neighborhood."

9. It has been further held that a license to use the premises for purposes of water packaging plant is required under Section 417 of the DMC Act as unless the process is regulated, it may pose the danger to life, health and property and create a nuisance especially since the plant is running in residential area and is closely related to public health. Section 417 is as under:

"417. Premises not to be used for certain purposes without license.--(1) 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 license granted by the Commissioner in this behalf, namely:

(a) any of the purposes specified in Part I of the Eleventh Schedule;

(b) any purpose which is, in the opinion of the Commissioner dangerous to life, health or property or likely to create a nuisance;

(c) keeping horses, cattle or otherwise quadruped animals or birds for transportation, sale or hire or for sale of the produce thereof; or

(d) storing any of the articles specified in Part II of the Eleventh Schedule except for domestic use of any of those articles:

Provides that the Corporation may declare that premises in which the aggregate quantity of articles stored for sale does not exceed such quantity as may be prescribed by bye-laws in respect of any such articles shall be exempted from the operation of Clause (d).

(2) In prescribing the terms of a license granted under this section for the use of premises as mills or iron yards or for similar purposes the Commissioner may, when he thinks fit, require the licensee to provide a space or passage within the premises for carts for loading and unloading purposes.

(3) The Corporation shall fix a scale of fees to be paid in respect of premises licensed under Sub-section (1):

Provided that no such fee shall exceed five hundred rupees."

10. The concerned orders further go on to note that the crux of the issue, as far as grant of license is concerned, is to ascertain whether such units can be allowed to function in residential areas and a decision is stated to have been taken in the meeting of a high powered committee held on 25th April, 1997 to the effect that a water packaging plant cannot be allowed to run in a residential or non-conforming area but only in a local commercial area as otherwise it would constitute a violation of the Master Plan of Delhi, 2001. Since there would be violation of the Master Plan, the Public Health Department is also unable to issue a health trade license to such a unit. It is stated that in the absence of a license such user would be hazardous to public health as the respondent MCD would not be in a position to monitor or keep a check on the observation of hygienic practices for such units apart from other problems arising due to operation of industrial units in residential areas.

11. The petitioners are disputing the very jurisdiction of the respondent Corporation to regulate in any manner the manufacture and processing of packaged drinking water. The plea advanced on behalf of the petitioners is two-fold. Firstly, in view of the standards prescribed by respondent No. 4, the regulation of such packaged drinking water is an occupied field and the respondent Corporation has no jurisdiction in the matter. Secondly, it is permissible to manufacture packaged drinking water in residential areas as manufacturing of such packaged drinking water is not in the list of classified industries under the Master Plan.

12. Learned Counsel for the petitioners contended that the MCD Act is in fact a general Act not confined to packaged drinking water. However, the rules and the norms laid down for packaged drinking water are under specialised Act and license has been issued under the Bureau of Indian Standards Act, 1986. The rules framed under Section 23 of the PFA Act have been amended by the Gazette Notification of 29th September, 2000 to include Sub-rule (28) prescribing that no person shall manufacture, sell or exhibit for sale packaged drinking water except under the bids Certificate. The said Notification also defines packaged drinking water as under:

"Packaged drinking water" means water derived from any source of potable water which is subjected to treatments, namely decantation, filtration, combination of filtrations, aeration, filtration with membrane filter depth filter, cartridge filter, activated carbon filtration, demineralization, remineralization reverse osmosis and packed. It may be disinfected to a level that will not lead to harmful contamination in the drinking water. It may be disinfected by means of Chemical agents and/or physical method of the number of micro-organism to a level that does not compromise food safety or suitability."

13. The Bureau of Indian Standards being an individual authority has prescribed the Indian standards for packaged drinking water which are extremely comprehensive and cover almost all areas of package, production, storage, premises, hygiene and transportation etc. as mentioned above. In View of the special statute dealing with the matter in issue, it is submitted, that the general statute will have to give way in view of the doctrine of occupied field.

14. Learned Counsel for the petitioners has relied upon the Constitutional Bench judgment of the Supreme Court in Belsund Sugar Co. Ltd. v. State of Bihar and Ors., . The products in question were sugarcane, sugar and molasses. The relevant portions are reproduced as under:

"49. It must, therefore, be held that the entire machinery of the Market Act cannot apply to the transactions of purchase of sugarcane by the appellant Sugar Factories as they are fully covered by the special provisions of the Sugarcane Act. It is also necessary to note that if both these Acts are treated to be simultaneously applying to cover sale and purchase of sugarcane, the possibility of a clear conflict of decisions of officers and authorities acting under the Sugarcane Act on the one hand and the Market Act on the other would arise. These authorities acting under both the State Acts, dealing with the same subject-matter and covering the same transactions may come to independent diverse conclusions and none of them being subordinate to the other may create a situation wherein there may be a head-on collision between the decisions and the orders of these authorities acting on their own in the hierarchy of the respective statutory provisions. For example, the Marketing Inspector may find that weighment of sugarcane was not proper at a given point of time, while the Cane Officer may find to the contrary. In the hierarchy of proceedings under the Market Act the Market Committee may take on a decision with respect to the same subject-matter, for which the Collector exercising appellate powers under the Sugarcane Act may take a contrary decision. This would create an irreconcilable conflict of decisions with consequential confusion. So far as the buyers and sellers of "agricultural produce - sugarcane" are concerned, it is of no avail to contend as submitted by learned Counsel for the respondents that for avoiding such conflicts, Section 15 is dispensed with by the State in exercise of its power under Section 42 of the Market Act, whether such an exemption can be granted by the State under Section 42 or not is not a relevant consideration for deciding the moot question whether the statutory scheme of the Market Act can harmoniously co-exist with the statutory scheme of the Sugarcane Act as enacted by the very same Legislature. It is possible to visualise that the State authorities may not exercise power under Section 42 of the Act. In such an eventuality, the Sugarcane Act would not countenance a public auction of sugarcane to be supplied by the cane-grower to the earmarked factory for which sugarcane is grown in the reserved area. On the other hand, the Market Act would require the very same sugarcane to be brought to the market yard for being sold at the public auction to the highest bidder who may not be the sugar factory itself. Thus what is reserved for the sugar factory by way of raw material by the Sugarcane Act would get dereserved by the sweep of Section 15 of the Market Act. To avoid such a head-on conflict, it has to be held that the Market Act is a general Act covering all types of agricultural produce listed in the schedule to the Act, but out of the subject-matter of a special enactment laying down an independent exclusive machinery for regulating sale, purchase and storage of such a commodity under a Special Act, then the Special Act would prevail over the General Act for that commodity and by necessary implication will take the said commodity out of the sweep of the General Act. Therefore, learned Counsel for the appellants are right when they submit that because of the Sugarcane Act the regulation of sale and purchase of sugarcane has to be carried out exclusively under the Sugarcane Act and the said transactions would be out of the general sweep of the Market Act. None of its machinery would be available to regulate these transactions."

"62. It has to be appreciated that the aforesaid provisions of the Sugarcane (Control) Order operate in the same field in which the Bihar legislative enactment, namely, the Sugarcane Act operates and both of them are complementary to each other. When taken together, they wholly occupy the field of regulation of price of sugarcane and also the mode and manner in which sugarcane has to be supplied and distributed to the earmarked sugar factories and thus lay down a comprehensive scheme of regulating purchase and sale of sugarcane to be supplied by sugarcane-growers to the earmarked sugar factories. It is, however, true that a comprehensive procedure or machinery for enforcing these provisions is found in greater detail in Sugarcane Act of the Bihar Legislature. But on a combined operation of both these provisions, it becomes at once clear that the general provisions of the Market Act so far as the regulation of sale and purchase of sugarcane is concerned get obviously excluded and superseded by these special provisions."

"71. It is of course, true that the Union Parliament has not exercised its concurrent legislative power under Entry 33 of the List III for regulating the sale and purchase of sugarcane. But, as noted earlier, the Sugarcane (Control) Order promulgated under the Central legislation of the Essential Commodities Act when read harmoniously and in conjunction with the State Sugarcane Act carves out a special field for their operation and by the sweep of their combined operation the general provisions of the Market Act pro tanto get excluded so far as the transactions of purchase and sale of sugarcane in the market area are concerned."

15. Learned Counsel for the petitioner also referred to the judgment of the Supreme Court in Vijay Kumar Sharma and Ors., etc. v. State of Karnataka and Ors., where it was observed as under:

"46. What is important from our point of view, is the view taken in that case that when repugnancy is alleged between the two statutes, it is necessary to examine whether the two laws occupy the same field, whether the new or the later statute covers the entire subject matter of the old, whether Legislature intended to lay down an exhaustive code in respect of the subject matter covered by the earlier law so as to replace it in its entirety and whether the earlier special statute can be construed as remaining in effect as a qualification of or exception to the later general law, since the new statute is enacted knowing fully well the existence of the earlier law and yet it has not repealed it expressly. The decision further lays down that for examining whether the two statutes cover the same subject matter, what is necessary to examine is the scope and the object of the two enactments, and that has to be done by ascertaining the intention in the usual way and what is meant by the usual way is nothing more or less than the ascertainment of the dominant object of the two legislations."

16. Learned Counsel for the respondent MCD, on the other hand, contended that the aforesaid doctrine of occupied field would not be applicable in the present case in view of the fact that Rules framed under the PFA for packaged drinking water are only in respect of a product whereas the DMC Act deals with the premises which cannot be used for certain purposes without obtaining prior permission and license form the Corporation. Thus, it is admitted and conceded that the regulations regarding the quality control in respect of the product would be governed by the norms set forth by respondent No. 4 but the authority to deal with any premises would vest in the respondent Corporation.

17. In this respect, learned Counsel for the respondent Corporation relied upon the Division Bench judgment of this Court in MCD v. Ved Sayal Kumar Ice Factory, 1980 MCC 389, in support of the contention that the respondent Corporation has jurisdiction to prescribe the regulations for the premises.

18. I have considered the submissions of the learned Counsel for the parties in respect of this plea. Learned Counsel for the respondent Corporation in fact fairly stated that in so far as the product is concerned, the doctrine of occupied field would be applicable. Thus, it is not for the respondent Corporation to provide the specifications for the product. There cannot be really a doubt that taking into consideration the nature of the product being packaged drinking water, stringent norms are liable to be prescribed. It was in order to achieve this object that the rules framed under the PFA were amended to include packaged drinking water which had to be licensed in terms of the requirements of Indian Standards as prescribed by respondent No. 4. Thus, respondent No. 4 requires all the relevant material to be produced and norms to be followed before the license is granted for manufacture of packaged drinking water. These norms are extremely comprehensive and stringent. Learned Counsel for respondent No. 4 further stated that periodic checks are carried out by the said respondent and thus machinery is in place to ensure that a person licensed to manufacture the said product follows the norms.

19. The Supreme Court in Belsund Sugar Co. Ltd. case (supra), has clearly held that where there are such specialised legislations dealing with the detailed aspects of the matter, the same should prevail over the general statute which should give way to the specialised statute. In the present case also, a more comprehensive procedure and machinery for enforcing the provision and the norms is already prevalent under the specialised legislation. The principle is a salutary one since if two authorities are dealing with the same subject matter and covering the same transaction, they may come to independent and diverse conclusions and neither of them being subordinate to the other may create a situation where there may be head on collision between the decisions of the two authorities. It is this aspect also which has been greatly emphasized in Belsund Sugar Co. Ltd. case (supra).

20. In so far as the plea of the respondents that the regulation of the product and the premises are different, it has to the appreciated that the regulations in respect of the packaged drinking water not only provide for the norms relating to product but also the norms relating to premises.

21. Thus, the kind of floor surface, the walls, the pipes and various other parameters in respect of the premises itself are prescribed. This would normally not be the position in case of other products under the PFA Act. In my considered view, the judgment of the Division Bench in Ved Sayal Kumar Ice Factory case (supra), would not apply to the facts of the present case. In the said case, it was held that the requirements under the PFA Act would be irrelevant for determining the liability to hold a license under Section 417 of the DMC Act. But the said case was not one where the PFA Act and Rules dealt with all the aspects of the matter including the product and the premises.

22. The aforesaid position is also to be appreciated taking into consideration the fact that the object of the license and regulation is to provide a proper product manufactured in excellent hygienic conditions thereby taking into consideration the nature of the product being packaged drinking water. Even the norms laid down for the premises under the PFA Act and Rules are far more stringent than are sought to be prescribed by the Health Department of the respondent Corporation. This is apparent from the requirements of the premises so prescribed which have been annexed to the counter-affidavit. As an illustration, some of the specific norms can be compared. As per the MCD, the following are the norms:

(a) They have stone, cemented or otherwise puce floor with tiles/stone skirting.

(b) The" walls are properly plastered and painted/lime-washed.

(c) They are provided with adequate light and ventilation to the satisfaction of the Licensing Authority.

(d) Premises should have satisfactory drainage arrangement to allow drainage of water into drain which must be connected with municipal sewer.

(e) There is no direct communication between the premises and any room used as a sleeping or living room.

(f) The doors, windows and ventilation openings of the premises used for the trade should be rendered flyproof."

23. As per the PFA Act and the Rules, they are as follows:

B-5.3.7 Drinking Water Handing, Storing and Bottling Areas

B-5.3.7.1 Floors

Where appropriate, should be of water-proof non-absorbent washable, non-slip and non-toxic materials, without crevices, and should be easy to clean and disinfect. Where appropriate, floors should have sufficient slope for liquids to drain to trapped outlet.

B-5.3.7.2 Walls

Where appropriate, should be of water proof, non-absorbent, washable and non-toxic material and should be light coloured. Up to a height appropriate for the operation they should be smooth and without crevices, and should be easy to clean and disinfect. Where appropriate, angles between walls, between walls and floors, and smoothen to facilitate cleaning."

B-5.3.7.3 Ceilings

Should be so designed, constructed and finished as to prevent the accumulation of dirt and minimise condensation, mould growth and flaking, and should be easy to clean.

B-5.3.7.4 Windows

Windows and other openings should be so constructed as to avoid accumulation of dirt and those which open should be fitted with screens. Screens should be easily movable for cleaning and kept in good repair. Internal window sills should be sloped to prevent use as shelves.

B-5.3.7.5 Doors

Should have smooth, non-absorbent surfaces and, where appropriate, be self-closing and close fitting type.

B-5.3.7.6 Stairs, lift cages and auxiliary structures

Platforms, ladders, chutes, should be so situated and constructed as not to cause contamination to drinking water. Chutes should be constructed with provision of inspection and cleaning hatches.

B-5.3.7.7 Piping

Piping for drinking water lines should be independent of non-potable water.

B-5.3.8 In drinking water handing areas all overhead structures and fittings should be installed in such a manner as to avoid contamination directly or indirectly of drinking water and raw materials by condensation and drip, and should not hamper cleaning operations. They should be insulated where appropriate and be so designed and finished as to prevent the accumulation of dirt and to minimize condensation, mould growth and flaking. They should be easy to clean.

B-5.3.9 Living Quarters, toilets and areas where animals are kept should be completely separated and should not open directly on to drinking water handling areas.

B-5.3.10 Where appropriate, establishments should be so designed that access can be controlled.

B-5.3.11 The use of material which cannot be adequately cleaned and disinfected, such as wood, should be avoided unless its use would not be a source of contamination."

24. Thus, there is no purpose in two authorities scrutinizing the very norms for a premises where packaged drinking water has to be manufactured and the more stringent norms as prescribed by respondent No. 4 are liable to be followed. There would thus be no purpose in the respondent Corporation trying to inspect and see the norms when respondent No. 4 itself has the machinery in place for carrying out such an inspection.

25. The object to see that a proper product is made available to the public and not to encourage a license raj where more than one authority deals with the same subject matter. Thus, in my considered view, both in respect of the product and the premises, the matter in issue is totally an occupied field and it is not for the respondent Corporation to specify the nature of the premises.

26. The next aspect which arises for consideration is whether despite the aforesaid, a license Would be required from the respondent Corporation. Learned Counsel for the respondent Corporation contended that in the alternative, it is the duty of the respondent Corporation to ensure that the building bye-laws, norms and the master plan are being adhered to and for that purpose the license must be obtained from the respondent Corporation. There can be no doubt, and it is not seriously disputed by learned Counsel for the petitioners, that it is the duty of the respondent Corporation to see and ensure that the structure and the building is constructed in accordance with the bye-laws. However, in my considered view, this is another aspect of the matter since it is not a case set out by the respondent Corporation that the building has been constructed in violation of building bye-laws. If that would have been the position, it was always open to the respondent Corporation to take action in accordance with law.

27. The linked question which arises for consideration is whether there is violation of the Master Plan inasmuch as the residential premises is being used for commercial purposes. This plea has to be considered on the basis whether under the classification of industries under the Master Plan, the product in question has been mentioned.

28. Household industries under the Master Plan are defined as units with maximum 5 workers and 5 Kw power which may be allowed to continue in residential areas but no pollutant industrial unit is to be permitted as a household industry. Further, the household industrial units would be allowed only on the ground floor to the extent of 25% of the floor space or 30 sq. mtrs. whichever is less. Annexure III in the Master Plan gives the classification of industries and under Group E at Sl. No. 149, aerated water and fruit beverages have been mentioned.

29. As far as Section 417 of the DMC Act is concerned, the same prescribes premises not to be used for certain purposes without license. Sub-clause (a) refers to any of the purposes specified in Part I of the XI Schedule. In terms of Entry 21(i) of the said XI Schedule manufacturing, parching, packing, pressing etc. by any process whatsoever of aerated water requires a license.

30. The aforesaid have been so noted as the principal contention on behalf of both the parties arises from the pica whether packaged drinking water is or is not a part of the definition of aerated water. This is so as even under Section 417(1)(a), the requirement for a license is only in respect of purpose specified in Part I of the XI Schedule and thus, it is necessary to determine whether packaged drinking water would form and fall within the definition of aerated water.

31. The contention advanced by learned Counsel for the petitioners is that aerated water and carbonated water is inter-changeable term and is one and the same thing. Carbonated water has been defined in Appendix B of the PFA Act read with Rules as under:

"A.01. Beverages -- Non Alcoholic:

"A01.01--Carbonated water means potable water impregnated with carbon dioxide under pressure and may contain any of the following singly or in combination."

32. In this behalf, learned Counsel for the petitioner has also relied upon the judgment of the Supreme Court in Bhim Sen v. State of Punjab, . The Supreme Court while dealing with the case of prosecution under the PFA Act, observed that the standards have been laid down for the quality of carbonated water which is the same as aerated water.

33. Learned Counsel for the respondent Corporation, on the other hand/ contended that in order to appreciate whether packaged drinking water formed a part of the definition of aerated water, the treatment which is given to water to make it packaged drinking water has to be perused. It is thus contended that "aeration" is one of the stages of treatment of such packaged drinking water, The water is treated with ozone which is used for purposes of preservation of water to avoid any anaerobic activity. It is thus stated that aeration is a process utilized for packaged drinking water which forms a part of aerated water. The dictionary meaning of the word 'aeration' has been relied upon which defines aeration as:

"Aeration

1. The process of artificially impregnating or charging with oxygen or carbon dioxide.

2. Arterialization.

3. Exposing to the action of air."

34. The word aerated has been defined as under:

"Aerated:

Artificially impregnated or charged with air, oxygen or carbon dioxide."

35. The expression aerated water has also been defined as under:

"any water artificially impregnated with a large amount of gas (as carbon dioxide)"

36. Learned Counsel for the petitioner has also relied upon the guidelines for drinking water quality issued by the World Health Organization which has defined 'aeration' as under:

"6.6.8 Aeration

Aeration can be used in water treatment to reduce tastes and odours (e.g. by oxidation of hydrogen sulfide), lower the levels of volatile organics, and alter the concentrations of dissolved gases, although it has little appreciable effect on those associated with algal growth. The aerators best suited for use in community supplies are the cascade, multiple tray, and packed-bed types, in which a thin film of water flows over surfaces to maximize oxygen transfer into the water from the surrounding air."

37. Learned Counsel for the petitioner, on the other hand contends that aeration is a process which is different from aerated water. In order to make it aerated water, the water has to be artificially impregnated with large amount of gas like carbon dioxide. It is further submitted that ozone itself is an unstable gas.

38. In my considered view there is difference between aeration and aerated water. It would be useful to refer to Butterworth's Medical Dictionary -- Second Edition in this behalf. Under the definition of water aerated water has been defined as under;

"aerated water--water containing dissolved carbon dioxide under pressure."

39. Aerated water is stated to be the same as carbonated water. The word 'aereted' has also been defined to imply artificially impregnated or charged with air, oxygen or carbon dioxide. This is different from the definition of aeration which is as under:

Aeration:

(i) The process of artificially impregnating or charging with oxygen or carbon dioxide.

(ii) Arterialization

(iii) Exposing to action of the air.

40. In the present case, while referring to aeration, in the processing of packaged drinking water, it is apparent that the same is part of the process of reverse osmosis. This would imply exposing to the action of air. It cannot be said that there is any impregnation or charging with air, oxygen or carbon dioxide which, in fact, would give rise to a fizz. It is still packaged drinking water which is being manufactured. Thus, there is force in contention of the learned Counsel for the petitioners that there is a difference between aeration and aerated water.

41. Learned Counsel for the respondent Corporation has also referred to the judgment of the Supreme Court in Nagar Mahapalika v. Prem Nath Monga Bottlers Pvt. Ltd., . The Supreme Court was considering the UP Municipality's case and the notification dated 4th January, 1975 under the same. It was observed that mineral water and aerated water/cold drinks are different and distinct articles. However, at the time of notification of 1975, preceding notification of 1956 could not have contemplated mineral water as mineral water was not prepared artificially in the year 1956.

42. In my considered view, the judgment in fact supports the contention of the petitioners that mineral water and aerated water are two different things. However, in the present case, we are concerned with packaged drinking water which also cannot be called aerated water. The only reason why the Supreme Court still included the entry was on account of the fact that entry in question was made in 1956 which could not have envisaged mineral water being manufactured. In the present case, the Master Plan is of 1990 which has been revised and updated from time-to-time. It cannot be said that packaged drinking water or mineral water were unknown concepts at that stage of time. Similarly, under the DMC Act also entries have been made from time to time. In fact, the XII Schedule was amended as late as 1993 to include certain entries.

43. In my considered view, packaged drinking water cannot fall within the definition of aerated water.

44. At this stage, it may be noted that the learned Counsel for respondent Corporation had contended, as another alternative to the aforesaid, that Section 417(1)(d) of the Act refers to storing any of the Articles specified in Part II of the XI Schedule and plastic and plastic goods fall within the same which can also be regulated for the purpose of storage. The contention is that since the packaged drinking water is put in plastic or plastic goods, the same can also be licensed since the containers would be stored. I am unable to accept this contention as no plastic or plastic goods as articles are stored in the premises but are only used as container in the packaged drinking water. This is, I am afraid, an attempt to somehow vest the power with the respondent Corporation for grant of license under the said sub-section. The effect of the aforesaid discussion would be that in the absence of packaged drinking water forming part of aerated water, there would be no requirement of license under Section 417(1)(a) of the DMC Act.

45. The next provision to be considered in this behalf is Section 417(1)(b) which applies to any purpose which in the opinion of the Commissioner is dangerous to life, health or property or likely to create a nuisance; The mere use of these terminologies in the impugned order passed by the concerned authorities cannot give rise to a presumption that the manufacture and processing of packaged drinking water would fall within the said clause. Packaged drinking water certainly cannot be dangerous to life, health or property in view of the license having been issued under PFA Act and the Rules.

46. The word 'nuisance' had been defined in Section 2(33) of the DMC Act as under:

"Section 2(33)--"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 to health or property."

47. The definition itself would make it clear that the manufacture and processing of packaged drinking water which conforms to the norms set forth by respondent No. 4 cannot be held to create a nuisance. This is apparent from a plain reading of the definition of the nuisance as aforesaid.

48. The conspectus of the aforesaid is that the MCD cannot resort to the licensing procedure under Section 417 of the Act. It may be noted that the learned Counsel has further advanced the plea that in any case in order to attract Section 417(1)(b), the requirement of Section 419 had to be first complied with and that no such notification had been issued.

49. The last plea in this behalf advanced on behalf of learned Counsel for respondent is that in any eventuality, the petitioners would be covered within Section 416 of the DMC Act. The same requires a prior permission of the Commissioner in writing to establish any premises in which it is intended to employ steel, electricity, water or other mechanical power. Under Sub-section (2) of Section 416, the Commissioner has the power to refuse to give such permission in case it is objectionable by reason of the density of population in the neighborhood thereof or would be a nuisance to the inhabitants of the neighborhood. It is thus only within these parameters that the power has to exercised under Section 416 of the DMC Act.

50. Trade premises have been defined under Section 2(59) of the Act as under:

"2(59). "trade premises" means any premises used or intended to be used for carrying on any trade or industry."

51. Learned Counsel for the petitioners, on the other hand, contends that the petitioners' units cannot be in the definition of a factory, workshop or trade premises and thus even Section 416 would have no application.

52. On this aspect, I am unable to accept the contention of the learned Counsel for the petitioner. The definition of trade premises in Section 2(59) of the Act is wide enough to include the carrying on any trade or industry. The petitioners are manufacturing and carrying out sale of packaged drinking water. This provision of Section 416(1) of the DMC Act has also to be understood in the context of Sub-section (2) of the said section. It encompasses a field other than the mere product or the prescription of the premises and takes into consideration the issue of population, neighborhood and locality. This aspect cannot be stated to be either an occupied field or not within the purview of the concerned authority being the Commissioner, MCD. This provision is also not affected by packaged drinking water not falling within the definition of aerated water.

53. I am thus of the considered view that the provisions of Section 416 of the Act would apply to the petitioners and thus a prior permission in writing of the Commissioner was required under the said provision. This has admittedly not been obtained.

54. It is, however, relevant to note that in so far as the notices are concerned, the same are under Section 417 read with Section 420 of the DMC Act, which could have no application. The impugned orders passed by the concerned authorities no doubt discuss this provision for the first time. However, this was not the notice issued to the petitioner.

55. In view of the aforesaid, I am of the considered view that the impugned notices cannot be sustained and are thus consequently quashed.

56. However, in view of the fact that the provisions of Section 416 of the DMC Act apply, the petitioners will have to apply to the respondent Corporation and their applications are liable to be considered by the Commissioner within the parameters of Sub-section (2) of Section 416 as discussed above. No doubt the provision prescribes for previous permission in writing which has not been obtained. There, however, appears to be a lot of over-lapping and shifting stands on the part of the respondent Authority which may have caused confusion in the minds of the petitioners especially when their product is already licensed and regulated by respondent No. 4 Bureau. Section 416 is also relevant from the point of view of the Municipal Authority having the power to regulate the establishment in terms of parameters provided therein.

57. I thus consider it appropriate to issue a direction that the petitioners shall apply within a period of 15 days from the date of this judgment to the respondent Corporation under Section 416 of the DMC Act and such application shall be considered and disposed of by the Commissioner of the respondent Corporation within the parameters of the said section, as discussed aforesaid, within a maximum period of 60 days of such application being made.

58. Till such application is disposed of no coercive action shall be taken against the petitioners. The Commissioner shall pass a reasoned order and may give a personal hearing to the petitioners. Needless to say that in the eventuality of the Commissioner refusing permission to the petitioners it would be open to the petitioners to impugn the said decision in accordance with law.

59. The writ petitions are allowed in the aforesaid terms leaving the parties to bear their own costs.