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CASE NO.:

Appeal (crl.) 151-158 of 1996

PETITIONER:

State of M.P.

RESPONDENT:

Vs.

Kedia Leather & Liquor Ltd. & Ors.

DATE OF JUDGMENT: 19/08/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

View expressed by High Court of Madhya Pradesh, Jabalpur Bench at

Indore holding that after introduction of Water (Prevention and Control

of Pollution) Act, 1974 (hereinafter referred to as the 'Water Act')

and the Air (Prevention and Control of Pollution) Act, 1981

(hereinafter referred to as the 'Air Act'), there was implied repeal of

Section 133 of the Code of Criminal Procedure, 1973 (in short the

'Code'), is questioned in these appeals.

Factual background needs to be noted in brief as legal issues of

pristine nature are involved. The Sub-Divisional Magistrate

(hereinafter referred to as the 'SDM')of the area concerned served

orders in terms of Section 133 of the Code directing the respondents

who owned industrial units to close their industries on the allegation

that serious pollution was created by discharge of effluent from their

respective factories and thereby a public nuisance was caused. The

preliminary issues and the proceedings initiated by the SDM were

questioned by the respondents herein before the High Court under

Section 397 of the Code.

The main plank of their arguments before the High Court was that

by enactment of Water Act and the Air Act there was implied repeal of

Section 133 of the Code.

The plea was contested by the SDM on the ground that the

provisions of Water Act and the Air Act operate in different fields,

and, therefore, the question of Section 133 of the Code getting

eclipsed did not arise.

The High Court referred to various provisions of the Water Act

and Air Act and compared their scope of operation with Section 133 of

the Code.

The High Court was of the view that the provisions of the Water

and the Air Acts are in essence elaboration and enlargement of the

powers conferred under Section 133 of the Code. Water and Air pollution

were held to be species of nuisance or of the conduct of trades or

occupation injuries to the health or physical comfort to the community.

As they deal with special types of nuisance, they ruled out operation

of Section 133 of the Code. It was concluded that existence and working

of the two parallel provisions would result not only in inconvenience

but also absurd results. In the ultimate, it was held that the

provisions of the Water and Air Acts impliedly repealed the provisions

of Section 133 of the Code, so far as allegations of public nuisance by

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air and water pollution by industries or persons covered by the two

Acts are concerned. As a consequence, it was held that the SDM had no

jurisdiction to act under Section 133 of the Code.

Learned counsel for the appellant-State submitted that the view

expressed by the High Court is not legally tenable. The three statutes

operate in different fields and even though there may be some amount of

over-lapping, they can co-exist. A statutory provision cannot be held

to have been repealed impliedly by the Court. Learned counsel for the

respondents-units submitted that this Court had occasion to pass

interim orders on 2.1.2001. Exception was taken to the manner of

functioning of the Madhya Pradesh Pollution Control Board (in short the

'Board') and directions were given to take necessary action against the

delinquent officials. Proceedings were initiated and on the basis of

the reports filed by the functionaries of the reconstituted Board,

functioning of the factories had been discontinued. The legality of the

proceedings and the orders passed therein have been questioned and the

Board has been moved for grant of necessary permission for making the

factories functional. In this background it is submitted that the

issues raised have really become academic. Though, learned counsel for

the appellant-State and the Board accepted the position to be factually

true, it is submitted that considering the impact of the decision which

would have far reaching consequences, the legal issues may be decided

and appropriate directions should be given so far as the functioning or

closure of the factories aspect is concerned.

Section 133 of the Code appears in Chapter X of the Code which

deals with maintenance of public order and tranquility. It is a part of

the heading 'public nuisance'. The term 'nuisance' as used in law is

not a term capable of exact definition and it has been pointed out in

Halsbury's Laws of England that "even at the present day there is not

entire agreement as to whether certain acts or omissions shall be

classed as nuisances or whether they do not rather fall under other

divisions of the law of tort". In Vasant Manga Nikumba and Ors. v.

Baburao Bhikanna Naidu (deceased) by Lrs. and Anr. (1995 Supp.(4) SCC

54) it was observed that nuisance is an inconvenience which materially

interferes with the ordinary physical comfort of human existence. It is

not capable of precise definition. To bring in application of Section

133 of the Code, there must be imminent danger to the property and

consequential nuisance to the public. The nuisance is the concomitant

act resulting in danger to the life or property due to likely collapse

etc. The object and purpose behind Section 133 of the Code is

essentially to prevent public nuisance and involves a sense of urgency

in the sense that if the Magistrate fails to take recourse immediately

irreparable damage would be done to the public. It applies to a

condition of the nuisance at the time when the order is passed and it

is not intended to apply to future likelihood or what may happen at

some later point of time. It does not deal with all potential nuisance,

and on the other hand applies when the nuisance is in existence. It has

to be noted that some times there is a confusion between Section 133

and Section 144 of the Code. While the latter is more general provision

the former is more specific. While the order under the former is

conditional, the order under the latter is absolute. The proceedings

are more in the nature of civil proceedings than criminal proceedings.

One significant factor to be noticed is that person against whom

action is taken is not an accused within the meaning of Section 133 of

the Code. He can give evidence on his own behalf and may be examined on

oath. Proceedings are not the proceedings in respect of offences. The

Water Act and the Air Act are characteristically special statutes.

The two statutes relate to prevention and control of pollution

and also provides for penal consequences in case of breach of statutory

provisions. Environmental, ecological air and water pollution amount to

violation of right to life assured by Article 21 of the Constitution of

India, 1950 (in short 'the Constitution'). Hygienic environment is an

integral facet of healthy life. Right to live with human dignity

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becomes illusory in the absence of humane and healthy environment.

Chapter V of the Water Act deals with prevention and control of

water pollution. Similarly, Chapter IV of the Air Act deals with

prevention and control of air pollution. Sections 30, 32 and 33 of the

Water Act deal with power of the State Board to carry out certain

works, emergency measures in certain cases and power of Board to make

application to the Courts for restraining apprehended pollution

respectively. Under Sections 18, 20 and 22-A of the Air Act deal with

power to give directions, power to give instructions for ensuring

standards and power of Board to make application to Court for

restraining persons from causing air pollution respectively.

The provisions of Section 133 of the Code can be culled in aid to

remove public nuisance caused by effluent of the discharge and air

discharge causing hardship to the general public. To that extent,

learned counsel for the appellant is correct in his submission.

There is presumption against a repeal by implication; and the

reason of this rule is based on the theory that the Legislature while

enacting a law has a complete knowledge of the existing laws on the

same subject matter, and therefore, when it does not provide a

repealing provision, the intention is clear not to repeal the existing

legislation. (See: Municipal Council, Palai through the Commissioner of

Municipal Council, Palai v. T.J. Joseph (AIR 1963 SC 1561), Northern

India Caterers (Private) Ltd. and Anr. v. State of Punjab and Anr. (AIR

1967 SC 1581), Municipal Corporation of Delhi v. Shiv Shanker (1971 (1)

SCC 442) and Ratan Lal Adukia and Anr. v. Union of India (AIR 1990 SC

104). When the new Act contains a repealing section mentioning the Acts

which it expressly repeals, the presumption against implied repeal of

other laws is further strengthened on the principle expressio unius

(persone vel rei) est exclusio alterius. (The express intention of one

person or thing is the exclusion of another), as illuminatingly stated

in Garnett v. Bradley (1878) 3 AC 944 (HL). The continuance of existing

legislation, in the absence of an express provision of repeal by

implication lies on the party asserting the same. The presumption is,

however, rebutted and a repeal is inferred by necessary implication

when the provisions of the later Act are so inconsistent with or

repugnant to the provisions of the earlier Act and that the two cannot

stand together. But, if the two can be read together and some

application can be made of the words in the earlier Act, a repeal will

not be inferred. (See: A.G. v. Moore (1878) 3 Ex. D 276, Ratanlal's

case (supra) and R.S. Raghunath v. State of Karnataka and Anr. (AIR

1992 SC 81).

The necessary questions to be asked are:

(1) Whether there is direct conflict between the two provisions.

(2) Whether the Legislature intended to lay down an exhaustive

Code in respect of the subject-matter replacing the earlier law;

(3) Whether the two laws occupy the same field.

(See: Pt. Rishikesh and Anr. v. Salma Begum (Smt.) (1995(4) SCC

718), and Shri A.B. Krishna & Ors. v. The State of Karnataka & Ors. (JT

1998(1) SC 613)

The doctrine of implied repeal is based on the theory that the

Legislature, which is presumed to know the existing law, did not intend

to create any confusion by retaining conflicting provisions and,

therefore, when the court applies the doctrine, it does not more than

give effect to the intention of the Legislature by examining the scope

and the object of the two enactments and by a comparison of their

provisions. The matter in each case is one of the construction and

comparison of the two statutes. The Court leans against implying a

repeal, "unless two Acts are so plainly repugnant to each other that

effect cannot be given to both at the same time, a repeal will not be

implied, or that there is a necessary inconsistency in the two Acts

standing together." (See Craies on Statute Law, Seventh Edition, page

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366, with reference to Re: Berrey (1936) Ch. 274). To determine

whether a later statute repeals by implication an earlier, it is

necessary to scrutinize the terms and consider the true meaning and

effect of the earlier Act. Until this is done, it is impossible to

ascertain whether any inconsistency exists between the two enactments.

The area of operation in the Code and the pollution laws in question

are different with wholly different aims and objects; and though they

alleviate nuisance, that is not of identical nature. They operate in

their respective fields and there is no impediment for their existence

side by side.

While as noted above the provisions of Section 133 of the Code

are in the nature of preventive measures, the provisions contained in

the two Acts are not only curative but also preventive and penal. The

provisions appear to be mutually exclusive and the question of one

replacing the other does not arise. Above being the position, the High

Court was not justified in holding that there was any implied repeal of

Section 133 of the Code. The appeals deserve to be allowed to the

extent indicated above, which we direct.

However, if applications are pending before the Board, it would

be appropriate for the Board to take necessary steps for their

disposal. The question whether there was no infraction under Section

133 of the Code or the two Acts is a matter which shall be dealt with

by the appropriate forum, and we do not express any opinion in that

regard.