ORDER

1. Heard the arguments of learned counsel on both sides.

2. The order of respondent-1 Taluka Executive Magistrate ('R. 1' for short) bearing No. MAG : CR : 104/96/97 directing the petitioner to close its industrial unit in compliance with the order dated 5-10-1996 of the Karnataka State Pollution Control Board ('the Board' for short) stands challenged by him in this revision on the ground that Tahsildar had no power to issue the said order dated 17-2-1997.

3. A few material facts giving rise to this revision are a stated below :

The petitioner's industrial unit had been engaged in the commercial activity of washing and cleaning the garments resulting in discharge of liquid effluent. The Board to prevent and control the said trade effluent, in exercise of its power under Section 33A of the Water (Prevention and Control of Pollution) Act, 1974 ('the Act' for short,) passed its said order dated 5-10-1996 directing the petitioner to stop its industrial activity with immediate effect and until further orders. That order was challenged by the petitioner before this Court in W.P. No. 29192/96. By its considered order dated 6-1-1997, this Court has dismissed his said writ petition. Thereafter, the Board addressed its letter bearing No. KSPCB/WPC/BNG/IND/89/96-97/3178 dated 4-1-1997 to the Deputy Commissioner to seize petitioner's said industry and see that the directions in its said order dated 5-10-1996 are complied with by it. Then the Deputy Commissioner referred that letter to the concerned Assistant Commissioner for the needful, who in turn, forwarded the same to R. 1. Then R. 1 has passed the impugned order.

4. The validity of R. 1's impugned order was assailed by Sri L. Umakanthan, learned counsel for petitioner, on two grounds, Firstly, that the Board had no power under the Act to issue direction to the Deputy Commissioner by its said letter to execute its order. Secondly, that on creation of the Board under the Act to deal with the problem of water pollution, R. 1 by necessary implication ceases to have jurisdiction under Section 133 of the Code of Criminal Procedure ('Cr. P.C.' for short) to take any action concerning any particular case of water pollution. As such, it was maintained by him that, R. 1' order impugned is without jurisdiction. In support of this contention reliance was placed by him on a decision of Kerala High Court in Tata Tea Limited v. State of Kerala, 1984 KLT 645.

5. Sri. B. Nagaraj, learned counsel appearing for R. 2 Board, canvassed his argument upholding R. 1's impugned order on the basis that the Board is sufficiently empowered under Section 33A of the Act to give any direction to any officer, authority or person which they are legally bound to comply with. Thus arguing he submitted that the Board in issuing the said direction to the Deputy Commissioner by its said letter was well within its authority under Section 33A and the Deputy Commissioner was bound to comply with that direction. His further submission was that R. 1 being the subordinate officer of the Deputy Commissioner, the letter justifiably had the said Board's letter sent to the former for execution of its said order dated 5-10-1996 against petitioner. Sri Nagaraj, therefore, maintained that no fault could be found with R. 1's order under challenge. The learned High Court Government Pleader for R. 1 adopted this argument to Sri B. Nagaraj.

6. The material provision in the Act which has direct bearing on the question of legality or otherwise of the impugned order of R. 1 is Section 33A of the Act, which reads :

"Section 33A. Power to give directions : -----------------------------

Notwithstanding anything contained in any other law, but subject to the provision of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its power and performance of its function under the Act, issue any directions in writing to any person; officer or authority, and such person, officer or authority shall be bound to comply with such directions.

Explanation : For the avoidance of doubt, it is hereby declared that the power to issue directions under this section includes the power to direct -

(a) The closure, prohibition or regulation of any industry, operation or process; or

(b) The stoppage or regulation of supply of electricity, water or any other service."

7. It is the distinct case put forward for the Board that the said order dated 5-10-1996 was passed by it in exercise of its power under Section 33A read with sub-clause (a) of Explanation appended thereto. Section 33A in the first instance makes it obligatory for the concerned person, officer or authority to comply with the Board's directions contained in its order under Section 33A passed against any such officer, authority or person. This apart, the provision in Section 33A read in the context of other provisions of the Act clearly brings this legal position to the fore that the Board is also empowered under Section 33A to issue, in exercise of its power and performance of its function under the Act, necessary directions to its officers and employees appointed by it in virtue of Section 12(3) thereof, who are also bound to comply with its directions. Section 33A or the scheme of the Act itself for that matter does not envisions issuance of direction by the Board to any Deputy Commissioner or Executive Magistrate under Cr. P.C. to execute its order passed under the Act. In that view of the ambit of Section 33A, the contention of learned counsel for the Board that the Board had the power thereunder to direct the Deputy Commissioner to execute its order dated 5-10-1996 passed against the petitioner's industrial unit is patently not acceptable and is untenable. Therefore, the Board's direction given or made to Deputy Commissioner to enforce its order dated 5-10-1996 was without authority of law. As a result, Deputy Commissioner was incompetent to carry out the Board's direction contained in its said letter dated 4-1-1997. Consequently, the impugned order of R. 1 if construed as having been passed on implied instructions from the Deputy Commissioner, as was sought to be argued by the Board's learned counsel would be per se illegal.

8. Another relevant fact or which vitiates R. 1's order purported to have been passed by invoking the aid of Section 133, Cr. P.C. is want of his jurisdiction thereunder to pass the same. The Act is a self-contained special enactment legislated with the avowed object to preventing and controlling water pollution and maintaining or restoring the wholesomeness of Water and the Board as the statutory body is created and established by it to achieve this specific purpose. The Act provides an effective machinery for the Board for successful implementation of its scheme to achieve its object. The remedies of appeal and revision against the order of the Board are also provided by the Act to the aggrieved person. In that view of the object and structural pattern of the Act investing the Board with the full power and providing the necessary machinery to achieve the aforementioned object, the general power of the Executive Magistrate under Section 133 of Cr. P.C. to take action in regard to any case of water pollution must, by necessary implication, give way and yield to the superseding statutory power of the Board to deal with and tackle the same. This conclusion finds its support in a ruling of the Kerala High Court in Tata Tea Ltd. v. State of Kerala (supra) where the learned Judge has rule thus :

"The Act is a special statute, while the provisions in Section 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 Section 133 of the Code in so far as they relate to prevention and control of water pollution. Therefore, the Execution Magistrate has no jurisdiction to deal with it under the provision of Section 133 of the Code."

9. Therefore, for the reasons stated above, I find that the impugned order of R. 1 Taluka Executive Magistrate shown as passed in exercise of its power under Section 133 of Cr. P.C. is unsustainable in law. It needs to be noted here that for the reasons best known to it the Board instead of promptly proceeding to take action under Section 41 of the Act against the erring petitioner for alleged breach of its said order dated 5-10-1996, has unnecessarily indulged in futile exercise of getting the same executed through the Deputy Commissioner.

10. Hence for the reasons aforesaid, the revision is allowed. The impugned order is set aside.

11. Revision allowed.