ORDER

1. These two petitions came to be filed under Section 482, Cr.P.C. questioning the very jurisdiction of the Sub-Divisional Magistrate, to take action under Sec. 133, Cr.P.C. for the alleged offence of polluting air and water and preventing public nuisance. Since common question of law in involved, these two petitions are disposed of by this order. Retain copy of this order in each file.

2. The brief facts of the case are that in Cr.P.C. 410/88 the petitioners are units of Grasim Industries Ltd., formerly known as the Gualior Rayon Silk Manufacturing (Wvg.) Co. Ltd. They have put up its two Units known as Harihar Polyfibers and Grasilene Dvn. on the left Bank of Tungabhadra river at Kumarapatnam near Harihar in Dharwad Dist. The Unit Harihar Polyfibers which produces pulp was commissioned in the year 1972. The other Unit Grasilene Division was set up in the year 1977 to produce high performance fibre from wood publp. The 2nd respondent filed a complaint before the 1st respondent making allegation of water and air pollution a result of discharge of treated effluents to Tungabhadra river by the petitioners. The petitioners filed a detailed statement of objection to the same requesting the 1st respondent to dismiss the said complaint. On 4-1-88 the 1st respt. directed the said case to be taken up with a similar petition (MAG SR 1/85) posted on 18th Jan., 1988 in which the 1st respondent has already issued a conditional order under Sec. 133 of Cr.P.C. against the petitioner. Aggrieved by the said proceedings, in MAG. S.R. 11/85, the petitioners approached this Court.

3. In Cr.P. No. 294/91 the petitioner had obtained a licence as contemplated under Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974, from Karnataka State Pollution Control Board, Bangalore. The licence was renewed from time to time. It is further stated that the company had obtained licence issued under the Air (Prevention and Control of Pollution) Act, 1981 and the same were renewed from year to year. The latest licence renewed in so far as M/s. Dunford Engineering Industries Ltd. was valid up to 30th Sept., 1991 and while M/s. CSI Fabrics Pvt. Ltd. was renewed up to 31-12-1991. It is further the case of the petitioner that both the industries were set up in 1984-85 and they were commissioned on 17-10-94. In view of the topography of the area of the factory, adequate arrangements were made for treatment of the effluent water and its discharge in the land measuring about 10 acres in S. Nos. 579 and 580 of Tandavapura Village, Nanjangud Tk. as approved by the Board also. The water which has been treated is being supplied to the neighbouring lands for the purpose of cultivation. From time to time Inspectors appointed under the Act have visited the factory and ensured proper treatment of affluent water. It is further contended that all precautionary measures are taken to see that no harm is caused either to the public, cattle or the vegetables grown nearby. On 28-2-91 the Sub-Divisional Magistrate, Nanjangud Sub-Division, Nanjangud, issued an order in case No. MAG 85/90-91 calling upon the petitioner company to stop carrying on the trade and business of the said factories within 2-3-1991. The petitioners came to know that a complaint came to be lodged by the S.I. of Police, Rural Police Station, Nanjangud and also Divisional Railway Major Works, Mysore and also the Executive Engineer, K.S.I. Division, Nanjangud, that the petitioners were carrying on as Managing Director of Dunford Fabrics Ltd., Nanjangud, Hadinaru road, near Basavanapura and that the water let out from the factory is full of noxious smell and chemical contents and is allowed to flow into Rampura Channel near Basavanapura village. That the water let out from the factory is full of chemical contents and being allowed to stagnate in front of the factory, it panetrates into the ground and polluted the drinking water in the wells of Basavanapura. It was also injurious to the public, cattle health, public comfort as well as there were probable chances of causing damage to the safety of the railway track in front of the factory and to the travelling public, etc. On the basis of this complaint, the Sub-Divisional Magistrate issued the order. The said order is questioned by the petitioner herein on the ground that as a Sub-Divisional Magistrate, he had not jurisdiction.

4. In both these petitioners, the important question involves is : As to whether the Sub-Divisional Magistrate has jurisdiction to take action under Sec. 133 of the Cr.P.C. after coming into force of the Water Air Pollution and Environment (Protection) Laws.

5. Heard the learned counsel for the petitioners and the learned counsel for the respondents.

6. The learned counsel for the petitioner submitted that subsequently Water (Prevention and Control of Pollution) Act, 1974, came into force w.e.f. 1-7-74. Similarly, Air (Prevention and Control of Pollution) Act, 1981 also came into force w.e.f. 1981. These are special statutes. Hence after coming into force of these Acts, the general law provision is deemed to be repealed. These two Acts are self-contained and exhaustive, providing all remedies to the charges. Therefore, the Sub-Divisional Magistrate has no jurisdiction to proceed under Sec. 133 of the Act. In support of his argument, he also placed reliance on a decision rendered by the Kerala High Court reported in 1984 KLJ 645 and 1989 Cri LJ MP 2039, wherein these two Courts have held that after coming into force of these two Acts, the Sub-Divisional Magistrate cannot proceed under Sec. 133 as far as public nuisance pertaining to pollution of water and air, are concerned.

7. Per contra, the learned H.C.G.P. submitted that the petitioners cannot question the jurisdiction of Sub-Divisional Magistrate on the ground that he has no jurisdiction before this Court under Sec. 482, Cr.P.C. On the other hand, they have to approach the Magistrate to substantiate their case before him. He also submitted that even otherwise the Magistrate continues to enjoy the power under Sec. 133 even in respect of water and air pollution which is a public nuisance.

8. Sri Datar, the learned counsel for R-2 submitted that these Acts are complimentary to each other. One does not override the other. Under Sec. 133, Cr.P.C. the Magistrate issues orders immediately whereas under the Air and Water Pollution Control Act, the parties will have to approach the statutory Board constituted under the Act and immediate order cannot be obtained. Therefore, it would affect the very rights of the individual parties as speedy and efficacious action would be necessary. Under Sec. 133, the Magistrate passes an order to avoid imminent danger to the public in general. Therefore, it cannot be construed that Sec. 133 is overruled by the special Act referred to above. In support of his arguments also be placed reliance on several decisions which I am presently dealing with.

9. The Kerala High Court in 1984 KLT 645, Tata Tea Ltd. v. State of Kerala had occasion to interpret the statute regarding implied repeal of earlier enactment by later Act and considering the provisions made in the Water (Prevention and Control of Pollution) Act, 1974, it has held :

"The preamble of the Act of 1974 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 purpose. The purpose behind Section 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 Section 133 of the Code contemplates enquiry by an Executive Magistrate into complaints of pollution and measure 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 Magistrate. The scope of the power so conferred is much wider than that conferred under Section 133 of the Code. 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, 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 by the Act. 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 a 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 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 Executive Magistrate has no jurisdiction to deal with it under Section 133 of the Code."

Further, in 1989 Cri LJ 2013, Abdul Hamid v. The Gwalior Rayon Silk Mfg. (WVG) Co. Ltd., the Madhya Pradesh High Court has considered the question whether the learned SDM had jurisdiction to proceed with an enquiry. In paragraph 14, the Court has considered that Section 21 of the Water Act provides for taking samples of effluents. Sub-sec. (2) thereof makes the result of analysis inadmissible in evidence any legal proceedings in the absence of compliance with the various provisions in sub-secs. (3), (4) and (5). Section 26 of the Air Act contains similar provision. These provisions are for the due protection of the industries. They are there to ensure a proper balance between the conflicting claims of nation's industrial progress and the hazards to the health of the citizens. The safeguards provided under the Acts have rational basis and without them the industrialists could be vexed day in and day out by being dragged to the criminal Courts for variety of reasons even unconnected with the vindication of the law. The Water and Air Acts are special Acts brought on the statue-book and constitute a complete Code for prevention and control of water and air pollution by any trade or industry. It has expressly been mandated therein that notwithstanding anything inconsistent therewith contained in any enactment order than the Acts their Provisions have to prevail. Inconsistent provisions in any other Act cannot, therefore, be permitted to come in the way of the provisions of the special Acts and defeat them. In view of the express provisions in Section 52 of the Air Act and Section 60 of the Water Act it has to be held that to the extent of inconsistency the provisions of the Penal Code. General Clauses Act and the Code stand repealed. In matter relating to pollution of Air or Water by trade or industry recourse has to be taken to the provisions of the special Acts. On that ground the Court has held that the SDM has no jurisdiction to try the case.

10. However, the learned counsel for the respondent submitted that these decisions have not considered the various judgments rendered by the Courts to examine the deemed repeal of the General Act with the principles enunciated by their Lordships of the Supreme Court. To substantiate his argument he has drawn my attention at the very outset to the commentary by Maxwell on Interpretation of Statutes, Twelfth Edition at page 191 which reads :

"REPEAL BY IMPLICATION NOT FAVOURED A later statute may repeal an earlier one either expressly or by implication. But repeal by implication is not favoured by the Courts, "forasmuch," said Coke, "as Acts of Parliaments are established with such gravity, wisdom and universal consent of the whole realm, for the advancement of the commonwealth, they ought not by any constrained construction out of the general and ambiguous words of a subsequent Act, to be abrogated. If, therefore, earlier and later statutes can reasonably be construed in such a way that both can be given effect to, this must be done. If, as with all modern statutes, the later Act contains a list of earlier enactments which it expressly repeals, an omission of a particular statue from the list will be a strong indication of an intention not to repeal that statute. And when the later Act is worded in purely affirmative language, without any negative expressed or implied, it becomes even less likely that it was intended to repeal the earlier law."

At page 196 it states :

"GENERALIA SPECIALIBUS NON DEROGANT "Now if anything be certain it is this," said the Ear of Selborne L.C. in The Vera Cruz, "that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so." In a later case Viscount Haldane said : "We are bound ... to apply a rule of construction which has been repeatedly laid down and is firmly established. It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the legislature had before provided for individually, unless an intention to do so is specially declared. A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the kind I have referred to.

So, Section 7 of the Admiralty Court Act 1861, which gave jurisdiction to that Court "over any claim for damage done by any ship," was held not to relate to an action for damages for loss of life under the Fatal Accidents Act 1846, actions under that Act being in respect of a special class of claims involving numerous and important considerations which the legislature could not be supposed to have had in mind in using words of so general a character."

In AIR 1955 SC 84 : (1955 Cri LJ 954), State of Punjab v. Mohar Singh Pratap Singh it is held as follows at page 258 (of Cri LJ) :

"Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, but whether it manifests an intention to destroy them. The Court cannot therefore subscribes to the board proposition that Section 6 of the General Clause Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. The provisions of Section 6 of the General Clauses Act will apply to a case of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment. Of course, the consequences laid down in Section 6 of the Act will apply only when a statute or regulation having the force of a statute is actually repealed. It has no application when a statute, which is of a temporary nature automatically expires by efflux of time."

11. The Hon'ble Supreme Court in , Municipal Council, Palai v. T. J. Joseph held that where it is doubtful whether the special statute was intended to be repealed by the general statute, the Court should try to give effect to both the enactments as far as possible. In , State of Orissa v. M. A. Tulloch and Co. Their Lordships of the Supreme Court have held that the test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole filed, the enactments of the other legislature whether passed before or other would be overborne on the ground of repugnance. Where such is the position the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation.

12. With these principles in mind, it is now necessary to consider the case on hand. As stated earlier, the petitioners claim that since Water Air Pollution and Environment (Protection) Laws are the subsequent enactment, the Sub-Divisional Magistrate under Sec. 133, Cr.P.C. cannot proceed with the case. At the very outset the learned counsel for the petitioner submitted that the petitioners have obtained licence from the State Board as contemplated under the Act and that licence continued to be in force. In that circumstances, the petitioners cannot be prevented from running the factory. If the Sub- Divisional Magistrate were to hold an enquiry without any basis, naturally the petitioners would be put to great inconvenience, and hardship also would be caused to them. Further, a large number of employees would go without any job. This Court under Sec. 482, Cr. P.C. cannot consider all these aspects. The question is : as to whether the S.D.M. has lost his jurisdiction to proceed against the case under Sec. 133, Cr.P.C.

13. The learned counsel for the petitioners submitted that the Water Air Pollution and Environment (Protection) Laws is a self-contained Act. It has also prescribed all the procedures to be followed. That being the case, these Acts have impliedly repealed the Sec. 133 of the Act. As stated earlier the Kerala High Court also has come to the conclusion that the power of the Sub-Divisional Magistrate is taken away. But at the same time, the Court has come to the conclusion that Sec. 133 covers a wide area and range, but it takes in pollution of water also which is the area and range specially covered by the Act. Sec. 133 of the Code contemplates enquiry by an Executive Magistrate into the complaints of pollution and measures being taken by the Magistrate to obviate such pollution or nuisance. Similar power is conferred on the State Board in the first instance and also on the Judicial Magistrate. These two Acts are co-existent and are not a conflict of jurisdiction. In similar circumstances it is found in Maxwell on Interpretation of Statutes that if earlier and later statutes can reasonably be construed in such a way that both can be given effect to, that this must be done. It is also clear that the later Act is worded in purely affirmative language without any negative, express or implied, it becomes even less likely that it was intended to repeal the earlier law.

14. It is now necessary to find out the object, scope and purport of Sec. 133 and also the Water and Air Pollution Control Act, to find out as to whether Sec. 133 of the Cr.P.C. is impliedly deleted or obliterated as contended by the learned counsel for the petitioners. Chapter X-B deals with Public Nuisances and the section empowers the Magistrate specified therein to make a conditional order for the removal of such nuisance in emergent cases, even if private nuisance may amount to public nuisance, if it affects the public generally. Sec. 133 is categoric, although reads discretionary. Judicial discretion has a mandatory import. When on disclosure of existence of a public nuisance from information and evidence Magistrate considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public he is to order removal of such nuisance within a time to be fixed by the order Section 133 provides a speedy and summary remedy in case of urgency where danger to public interest or public health is concerned. In all other cases the parties should be referred to the remedy under the ordinary law. The idea is that if immediate steps are not taken, irreparable injury will be done. Extraordinary powers were meant to be exercised under extraordinary circumstances. The Magistrate under Section 133 has to act purely in the interest of the public. As drastic powers are conferred by Section 133(1) those powers should be springly used, so as not to become themselves a nuisance to community at large. Before taking action, the Magistrate must satisfy himself that it is a public nuisance, and it is not a private dispute between different members of the public, that it is a case of great emergency of imminent danger to the public interest. Section 133 applies only to existing and not to potential nuisances i.e., to what may become a nuisance in the future, nor does it apply when the nuisance has ceased. The power being summary, the section should be sparingly used. No length of user or obstruction can legalise a public nuisance. Notwithstanding the fact that there are other special or local laws dealing with nuisance, the Magistrate's power to act under Section 133 is not affected by them. AIR 1943 Mad 3. To pass any order under Sec. 133 the Magistrate must be satisfied. Under Sec. 133 a conditional order is passed to remove the nuisance or if objected to, to appear and show cause. Section 133 is of a remedial nature whereas other provisions of law are preventive. This can be resorted to when there is a question of removal of existing obstruction on a public place whereas, it is an undisputed fact that the Air and Water Pollution Control Act though came into force on different dates, the object, scope and purpose are similar. The purpose of the Water (Prevention and Control of Pollution) Act is to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith. These two Acts are merely concentrated on the factories and industries but Section 133 deals with a general provision. These two Acts also further provide that a complaint should be made to deal with Central or State Board and it is not in dispute that there is only one State Board constituted in Karnataka. Further if for any emergent order, one has to rush to the Board there is a cumbers some procedure to be followed by the Board to take action in respect of water and air pollution. On the other hand, the Sub-Divisional Magistrate are available very near to their places and the public can approach them for remedial measures. From the reading of the entire Water and Air Act, it is clear that the object is to take preventive measures. Under this Act, remedial measures are not available as far as one could secure from Sub-Divisional Magistrate.

15. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intent to create any confusion by retaining conflicting provisions and, therefore, when the Court applies the doctrine, it does no more than give effect to the intention of the Legislate by examining the scope and the object of the two enactments and by a comparison of their provisions. A repeal by implication will not be inferred merely from something contained in the preamble of the Act. The continuance of existing legislation, in the absence of an express provision of repeal, being presumed, the burden to show that there has been a 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 later Act are so inconsistent with or repugnant to the provisions of earlier Act "that the two cannot stand together". From the above discussion, it is clear that there is no direct conflict between the two provisions. The legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law, the two laws occupy the same filed. Under the circumstances, it cannot be said that there is implied repeal of Sec. 133, Cr.P.C. The Andhra Pradesh High Court in M/s. Nagarjuna Paper Mills Ltd. v. Sub-Divisional Magistrate and Revenue Divisional Officer, 1987 Cri LJ 2071 has clearly held that Water (Prevention and Control of Pollution) Act, 1974 has not taken away powers of Sub-Divisional Magistrate under Section 133. I fully agree with the view taken in the said decision by the Andhra Pradesh High Court.

16. One more aspect requires consideration. According to Air and Water Act, prior sanction is necessary to prosecute the offender. But no such prior sanction is necessary to proceed under Section 133, Cr.P.C. That itself cannot take away the jurisdiction of the Sub-Divisional Magistrate under Sec. 133, Cr.P.C. Therefore, I respectively disagree with the view taken by the Madhya Pradesh High Court in a decision reported in (1989 Cri LJ 2013) referred to supra. It may be recalled here that under Sec. 133 of the old Cr.P.C. Sub-Divisional Magistrate alone was empowered. But sub-sec. (1) of Sec. 133 is amended which reads :

"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 a police officer or other information and on taking such evidence (if any) as he thinks fit, considers - ...."

(the other sub-sections are not necessary for our purpose).

From this it is clear from sub-sec. (1) the word "any other Executive Magistrate specially empowered in this behalf by the State Government" and "the report of a police officer" and "a police report" respectively have been substituted.

17. In Sec. 49 of the Water Act and Sec. 43 of the Air Act, it is clear that no Court inferior to that of Metropolitan Magistrate or Judicial Magistrate of the First Class shall try any offence punishable under this Act. Therefore, it is clear even in regard to jurisdiction of the Court also, there is no dispute.

18. The Kerala High Court in the decision referred to above has come to the conclusion that the remedies provided under the Air and Water (Prevention and Control of Pollution) Act are exhaustive and covers all aspects of the matter. Therefore, it has come to the conclusion that the jurisdiction of Sub-Divisional, Magistrate under Sec. 133 is taken away. As stated earlier, Sec. 133 is dealing with remedial measures but the provisions of Air and Water Act as discussed above in detail indicate that they deal with preventive measures. Therefore, I repectully hold that I have not been persuaded to accept that reasoning of the Kerala High Court in the judgment reported in 1984 KLJ 645 referred to supra. For the foregoing reasons, I hold that these petitions are liable to be dismissed holding that the Sub- Divisional Magistrates have jurisdiction to pass orders under Sec. 133, Cr.P.C. to remove public nuisance, notwithstanding the fact that Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 have come into force.

19. In the result therefore, I proceed to pass the following :

ORDER

20. These two petitions are dismissed and the learned Sub-Divisional Magistrates are directed to proceed with the cases from the stage at which they are pending.

21. Petition dismissed.