TATA TEA CO Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner herein is a company running an instant tea factory at Nallathanni in Munnar. The 2nd respondent, Secretary Munnar Public Interest Protaction 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. There upon, the Sub-Divisional Magistrate passed a preliminary order under Section 133(1)(b) of the Code of Criminal Procedure (for short the Code) requiring the petitioner company to desist from discharging the diluents 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 high on 25.5.83 at 11 A.M. and to show cause why the order should not be inforced. Petitioner having received that 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 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 Section 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 Pollutation) 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provisions of Section 133 of the Code in so far as they relate to water pollution must be deemed to have been impliedly repealed.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 Section 133 of the Code are wider in scope and. therefore, the theory of implied repeal cannot be accepted.

(3.) Section 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 clause (a) to (0 of sub-section (1) thereof. Clause (b) reads thus:p133 Conditional order for removal of nuisance. (1) Whenever a District Magistrate 01 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 of 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. Section 134 of the Code contemplates service or notification of the order, Section 135 deals, with the duties and rights of the person on whom an order is served. Section 136 provides that failure to do so will amount to parities prescribed in Section 188 Indian Penal Code. Procedural details are provided in Sections 137 to 140 of the Code. Section 141 deals with liability for penalty under Section 188 Indian Penal Code 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 Section 142 of the Code.