ORDER

1. The petitioner-industry is engaged in the manufacture of M.G. Posters and M.G. Kraft paper based on 100% waste paper with all adding chemicals. It is a joint venture with A.P. Industrial Development Corporation Ltd., which owns 50% of the share holding in the company. The unit started in 1982 and about 100 staff and workers are employed.

2. The A.P. Pollution Control Board convened a meeting which was presided over by the District Collector and attended by the General Manager, District Industries Center, Sangareddy, and representatives of the A.P. Pollution Control Board and various managements, including the petitioner, on 7-3-86 at Patancheru to consider and solve the pollution problems in Patancheru.

3. The case to the petitioner is that in the meeting held on 7-3-86 it was decided to construct a Common Effluent Plant similar to the one proposed in the Nacharam Industrial Estate. While the position stood like that, the Sub-Divisional Magistrate issued a cyclostyled notice in Form-20 under Section 133, Cr.P.C., on 11-8-86 to the petitioner to cease production activities within the factory on the ground that it appears to him that the petitioner is not taking sufficient steps and precautionary measures to control water and air pollution in and around the factory and also in the surrounding village, creating discomfort and injury to the health of the public and cattle. The Member-Secretary of the Pollution Control Board sent a letter to the petitioner on 12-8-86 and the petitioner also sent the reply on 27th August, 1986, to the Member-Secretary of the Pollution Control Board, requesting him to issue the appreciation certificate and paid the required feel also by means of a draft. The case of the petitioner is that ignoring that, the Sub-Divisional Magistrate passed the order under Section 136, Cr.P.C. authorising the Manual Revenue Officer to close the carrying of trade of production in the petitioner-factory by means of an order dt. 4-10-86. This petition was filed under Section 482, Cr.P.C. to quash that order on the ground that the Sub-Divisional Magistrate has no authority to pass such an order and the petitioner obtained an interim suspension order from this Court on 8-10-86.

4. The Superintending Engineer of the Pollution Control Board, Secunderabad, in his letter dt. 17-7-86 reported that due to emission of effluents from the petitioner-company there has been air and water pollution in and around Patancheru area by discharging the untreated effluents into Nakka Vagu which is injurious to human and cattle life. On the basis of that report and on the information that is available with him, the Sub-Divisional Magistrate passed the order under Section 133, Cr.P.C. in Form No. 20 prescribing time limit to control the pollution and when his order was not complied with, he passed the final order under Section 136, Cr.P.C. after considering the references mentioned in the order.

5. The contention of the respondents is that they have obtained the technical information from the Superintending Engineer who is the competent authority to issue the same and on that basis only, action has been initiated under Section 133, Cr.P.C.

6. It is contended by the petitioner that the A.P. Pollution Control Board has been entrusted with the powers relating to air and water pollution and the Sub-Divisional Magistrate cannot exercise his powers under Section 133, Cr.P.C. In effect, the contention is that the general power contained in S. 133, Cr.P.C., should not be exercised by the Sub-Divisional Magistrate when the powers have been entrusted to the Pollution Control Board. The Board did not have powers beyond going to Courts and seeking prosecution of the erring industries. It could not close the industry concerned for causing pollution. The only competent authority that can exercise the powers is only the Sub-Divisional Magistrate, S. 133, Cr.P.C., reads as follows :-

"(1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of 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

(c) to (f) ......

such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying such trade or occupation, or keeping any goods or merchandise ...............

(i) .......

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such a manner as may be directed;

(iii) to (vi) ........

or, if he object to do so, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this Section shall be called in question in any Civil Court."

In the concluding para of sub-section (1), the words "show cause why the order should not be made absolute" have been substituted for the words "move to have the order set aside or modified" used in the old provision. This is intended to bring the language in harmony with the language of Sections 136 and 138, Cr.P.C. The Water (Privation and Control of Pollution) Act, 1974 had not taken away the rights of the Sub-Divisional Magistrate under Section 133, Cr.P.C.

7. In this case, admittedly a meeting was held by the Pollution Control Board with representative a of all the industries at Patancheru on 7-3-86 and the meeting decided to have the necessity of having common effluent plants. In Form-20 notice, time has been stipulated and the same was brought to the notice of the party concerned. The appreciation certificate sought for was not produced before the Sub-Divisional Magistrate. He has no other alternative than to pass the final order as the petitioner failed to produce the certificate to in the alternative he failed to take the preventive steps.

8. Measures like transporting the effluents by tankers and setting up a common effluent treatment plant could be considered by the industries situated at Patancheru. On the other hand, the persons who were served with notices, approached this Court and obtained suspension order. The net result is that by virtue of the orders of this Court, the person in the locality have suffered on account of the effluents that have been discharged from the respective units in and around Patancheru area. The final order that has been passed is quite in conformity with the provisions contained in Sections 133 to 136, Cr.P.C.

9. The argument that the Pollution Control Board alone has got the right and the Sub-Divisional Magistrate has no power, cannot be entertained. It is only the Sub-Divisional Magistrate that is entitled to take action under Section 133, Cr.P.C. in case of remove of nuisance, if any, brought to his notice either by a report from any police officer or any other information. It is also contended that the Sub-Divisional Magistrate has no power to ask for the production of the appreciation certificate. The Magistrate is certainly empowered to take in evidence any other particulars that required for passing of the final order in the same shape or in the modified form, after giving an opportunity to the party concerned. In this case, admittedly, an opportunity was given and the petitioner away asked to produce the appreciation certificate and when he failed to do so, the final order was passed. The order passed under Section 136, Cr.P.C. does not suffer from any infirmity whatsoever as pointed out by the petitioner. The Superintending Engineer of the Board submitted in clear terms that the discharge of the effluents affect the health of public and cattle. If what has been stated by the petitioner that the preventive steps and other methods have been taken is correct, then definitely he would have obtained the appreciation certificate. The appreciation certificate has to be obtained from the Pollution Control Board and the Board, if all the conditions are satisfied, will not hesitate in issuing the certificate. The non-production of the certificate strengthens the view taken by the Sub-Divisional Magistrate in passing the final order under Section 136, Cr.P.C. The conditions laid down by the Sub-Divisional Magistrate in requiring the party concerned to produce the certificate cannot be said to be without jurisdiction or that the Magistrate exceeded his jurisdiction.

10. It is further contended that at the time of the commencement of the industry, the Pollution Control Board has given a No Objection Certificate and thereafter the petitioner was paying the cess every year and so it must be deemed that they are following the guidelines given by the Board and the action initiated by the Sub-Divisional Magistrate does not warrant a situation to close the industry. It is the objective satisfaction of the Sub-Divisional Magistrate, if it has come to his notice about removal of nuisance. The record reveals that there is the opinion of a technical person. So the Sub-Divisional Magistrate was justified in issuing the order in question and the mere obtaining of a No Objection Certificate at an anterior point of time will not ensure to the benefit of the petitioner to contend that there is no necessity for them to product the appreciation certificate from the Pollution Control Board. The abuse of process as sought to be made out by the party in passing the preliminary order under Section 133 or the final order under Section 136, Cr.P.C. has not been made out and it is desirable in case where it causes injury to the human life and cattle, Courts should not lightly interfere and suspend the proceedings on the mere allegation of an apprehended unreasonable act of the Sub-Divisional Magistrate.

11. There are as many as 15 or 16 industries which filed separate petitions and considering the allegations made in those petitions that they are taking steps for the discharge of effluents, six months' time is granted. In the meantime, they are directed to obtain the appreciation certificate. If the petitioner fails to produce the certificate before the Sub-Divisional Magistrate within six months from today, the Sub-Divisional Magistrate is at liberty to take proper and necessary action according to law. The Pollution Control Board also is directed to consider the request of the petitioner for the issuance of the certificate.

12. The petition is disposed of accordingly.

13. Petition disposed of accordingly.