STATE OF M.P. V. KEDIA LEATHER & LIQUOR LTD., AIR 2003 SC 3236

 

STATE OF M.P. V. KEDIA LEATHER & LIQUOR LTD., AIR 2003 SC 3236

 

FACTS AND CASE HISTORY

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. It was argued before the High Court 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.

High Court held that the 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 injurious to the health or physical comfort of the community. As they deal with special types of nuisance, they ruled out operation of Section 133 of the Code. As a consequence, it was held that the SDM had no jurisdiction to act under Section 133 of the Code.

ISSUES

1. Whether after introduction of Water (Prevention and Control of Pollution) Act, 1974 (the ‘Water Act’) and the Air (Prevention and Control of Pollution) Act, 1981 (the ‘Air Act’), there was implied repeal of Section 133 of the Code of Criminal Procedure, 1973 (the ‘Code’), is questioned in these appeals?
2. Whether there is direct conflict between the two provisions?
3. Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law?
4. Whether the two laws occupy the same field?

CASES REFERRED

Vasant Manga Nikumba v. Baburao Bhikanna Naidu (deceased) by Lrs. [1995 Supp.(4) SCC 54]: 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.

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.

JUDGEMENT

The Court held that the two statutes i.e., Air Act and Water Act, relate to prevention and control of pollution and also provide 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. Hygienic environment is an integral facet of healthy life. Right to live with human dignity becomes illusory in the absence of humane and healthy environment.

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.

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 nothing more than giving 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 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.

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.

Hence, the High Court was not justified in holding that there was any implied repeal of Section 133 of the Code.