TATA TEA LTD v. STATE OF KERALA — 1983 DIGILAW 174 (KER)

Judgment :- 1. Petitioner herein is a company running an instant tea factory at Nallathanni in Munnar. The 2nd respondent, Secretary Munnar Public Interest Protection Association, Munnar, filed an application before the Sub Divisional Magistrate, Devicolam complaining that the wastages of the Instant Tea Division are being washed out into Nallathanni river, thereby polluting water in the river which is used as drinking water by the people of the locality. There are acidic contents in the wastages which are harmful to human health and therefore in the petition appropriate action was demanded for. Thereupon, the Sub Divisional Magistrate passed a preliminary order under S.133(1)(b) of the Code of Criminal Procedure (for short the'Code') requiring the petitioner company to desist from discharging the effluents from the factory into the Nallathanni river and to make suitable arrangements for the passage and storage of the effluents from the factory in such a manner as to prevent the same from passing into the river within 7 days from the date of the order or to appear before him on 25-5-1983 at 11 A.M. and to show cause why the order should not be enforced. Petitioner having received the order, appeared before the Magistrate and filed objections contending inter alia that the factory was being run from 1964 and it is controlled by the provisions of the Central Act 6 of 1974 and has obtained sanction under the provisions of that Act in the matter of discharge of effluents, that no public nuisance or pollution as alleged in the petition has been caused and that the Magistrate has no jurisdiction to deal with the matter. The case was adjourned and in the meanwhile the petitioner has filed this petition under S.482 of the Code to quash the proceedings before the Sub Divisional Magistrate. 2. Learned counsel for the petitioner submitted that the Water (Prevention and Control of Pollution) Act 1974 (Act 6 of 1974) (for short 'the 'Act') is a complete Code in itself in the matter of prevention and control of water pollution, that it provides for measures and control of such water pollution and devises machinery for implementation of the objects and purpose of the Act and provides for punishment to those who indulge in water pollution. Therefore, it is contended that the provisions of S.133 of the Code in so far as they relate to water pollution must be deemed to have been impliedly repealed. Learned counsel for the second respondent contended, on the other hand, that there are significant differences between the two statutes, that provisions of S.133 of the Code are wider in scope and therefore, the theory of implied repeal cannot be accepted. 3. S.133 of the Code vests power with the District Magistrate, Sub Divisional Magistrate or a specially empowered Executive Magistrate to take action as contemplated therein in contingencies mentioned in sub-clauses (a) to (f) of sub-section (1) thereof. Clause (b) reads thus: 133. Conditional order for removal of nuisance. (1) Whenever a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers. (a) (b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated, or". S. 134 of the Code contemplates service or notification of the order. S.135 deals with the duties and rights of the person on whom an order is served. S.136 provides that failure to do so will amount to penalties prescribed in S.188 IPC. Procedural details are provided in S.137 to 140 of the Code. S.141 deals with liability for penalty under S.188 IPC. and it also empowers the Magistrate to cause the act to be performed and recover the costs thereof from the delinquent party. Power to take immediate measures is conferred under S.142 of the Code. 4. Preamble of the Act shows that it was intended to provide for prevention and control of water pollution and maintenance and restoration of wholesomeness of water and for the establishment of Boards with a view to carry out these purposes and for the prevention and control of water pollution, etc. Kerala is one of the States to which the Act is applicable even in the first instance, the State legislature having passed appropriate resolution. Kerala is one of the States to which the Act is applicable even in the first instance, the State legislature having passed appropriate resolution. S.3 of the Act relates to constitution of Central Board and S.4 deals with the constitution of the State Boards. Chapter IV of the Act lays down powers and functions of the Board. Clause (g) of S.17 mentions the laying down, modification or annulment of affluent standards for the sewage and trade effluents and for the quality of receiving waters resulting from the discharge of effluents, etc. Clause (h) relates to the method of treatment of sewage and trade effluents to be discharged. Clause (i) confers power to make, vary or revoke any order for the purposes mentioned therein. Sub-clause (i) of Cl. (I) is for the prevention, control or abatement of discharge of waste into streams or wells. 5. Chapter V lays down measures for the prevention and control of water pollution. S.20 confers power to obtain information. S.21 confers power on the State Board to take samples of effluents and procedure to be followed in connection therewith. S.22 is a related section. S.23 relates to the power of entry and inspection, for any person empowered by the Board. S.24 is substantive section prohibiting use of a stream or well for disposal of polluting matter, etc. as laid down therein. S.25 deals with restrictions on new outlets and new discharges. It contemplates application for the consent of the State Board to be made in the prescribed form, that is because without such consent no person can bring into use any new outlets. According to sub-section (3) State Board may make such enquiry as it may deem fit in respect of the application and grant consent subject to such conditions as it may impose as stated in sub-section (4). Where a new or altered outlet is brought into use without the required consent of the State Board, the Board may serve on such person appropriate notice imposing such conditions. I may notice that the petitioner claims that such conditions have been imposed in regard to this matter. Appeals against such orders are provided in S.28 and Revisions under S.29 of the Act. S.30 of the Act empowers State Board to carry out certain works where such works contemplated in the conditions imposed have not been carried out. I may notice that the petitioner claims that such conditions have been imposed in regard to this matter. Appeals against such orders are provided in S.28 and Revisions under S.29 of the Act. S.30 of the Act empowers State Board to carry out certain works where such works contemplated in the conditions imposed have not been carried out. S.32 confers on the Board power to take emergency measures in the case of pollution of stream or well. Under S.33 the Board is empowered to make application to a court not interior to that of a Presidency Magistrate or a Magistrate of the First Class for restraining such person who is likely to cause such pollution. The court is entitled to make an order of restraint, and authorise the Board to undertake the removal or disposal of the objectionable matter at the expense of the delinquent. 6. Chapter VII deals with penalties and procedures. Failure to comply with certain directions of the Board and the court has been made penal. Penalties for certain other acts are prescribed under S.42 to 48 of the Act. S.49 lays down that no court shall take cognizance of any offence under the Act except on a complaint made by or with the previous sanction in writing of the State Board and no court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence punishable under the Act. S.60 states that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act. 7. A statute may provide in express terms that that enactment will repeal an earlier enactment. In such a case there is no difficulty in treating the latter enactment as repealed. Even where the later Act does not contain such express words, if the co-existence of the two sets of provisions is destructive of the object with which the later Act was passed, the court would treat the earlier provision as impliedly repealed. A later Act which confers a new right would repeal an earlier right if the effect of the two rights coexisting together produces conflict or inconvenience, for, in such a case it is legitimate to infer that the legislature did not intend for such a consequence. A later Act which confers a new right would repeal an earlier right if the effect of the two rights coexisting together produces conflict or inconvenience, for, in such a case it is legitimate to infer that the legislature did not intend for such a consequence. It is also a further rule of construction to regard a special enactment covering a particular area as overriding a general enactment. Of course, there must be strong reasons to uphold a case of implied repeal. (See Northern India Carterers (Private) Limited and another v. State of Punjab and another (AIR. 1967 SC. 1581). 8. The Preamble of the Act itself makes it clear that it has been enacted to provide for the prevention and control of water pollution and to maintain or restore wholesomeness of water and to establish Board to ensure these purposes. The purpose behind S.133(1)(b) of the Code in so far as it relates to water is also the same. Of course this provision in the Code covers a wider area and range, but it takes in pollution of water also, which is the area and range specially covered by the Act. While S.133 of the Code contemplates enquiry by an Executive Magistrate into complaints of pollution and measures being taken by the Magistrate to obviate such pollution or nuisance, the Act confers such powers in the first instance on the State Board and also on Judicial Magistrates. The scope of the power so conferred is much wider than that conferred under S.133 of the Code. The only difference pointed out by the learned counsel for the second respondent is that while under S.133 of the Code it is open to a citizen to directly approach an Executive Magistrate, he is unable to approach directly a Judicial Magistrate under the provisions of the Act. But, that would make no difference since under the provisions of the Act, it is open to the citizen concerned to approach the State Board with his grievance and it is open to the State Board to take such measures as are contemplated in the Act including filing petition before a Judicial Magistrate. All the remedies which could be provided by an Executive Magistrate under S.133 could certainly be provided by authorities contemplated under the Act. The Act is a special statute, while the provisions in S.133 are of general nature. All the remedies which could be provided by an Executive Magistrate under S.133 could certainly be provided by authorities contemplated under the Act. The Act is a special statute, while the provisions in S.133 are of general nature. In regard to pollution of water by effluents, the Act is a complete Code in itself and if these two provisions are to co-exist, that would certainly be causing inconvenience, if not conflict of jurisdiction. There is no reason to assume that while Executive Magistrate could move expeditiously the State Board could not do so. On the other hand, the State Board, which has considerable expertise and requisite machinery in aid of its functions can certainly be expected to move purposefully and fruitfully in the case of water pollution. In this view, I agree that the provisions of the Act, by implication, repeal the provisions of S.133 of the Code in so far as they relate to prevention and control of water pollution. Therefore, the Executive Magistrate has no jurisdiction to deal with it under the provisions of S.133 of the Code. In the result, the proceedings before the Sub Divisional Magistrate, Devicolam in M.C. No. 12 of 1983 are quashed. This Crl. M.C. is allowed in this manner.