@JUDGMENTTAG-ORDER
Padmini Jesudurai, J.@mdashThe Petitioners, who under S. 138(2) Crl. P.C., have been directed by the Sub-Divisional Magistrate (and Sub
Collector) Coimbatore, to shut down the operation of their factories, engaged in burning used car batteries to extract the lead content, on the
ground that the same amounts to public nuisance, invoke the inherent powers of this Court under S. 482, Crl. P.C., to have the above order set
aside.
2. Facts briefly are: The petitioners had two factories located in Kurichi in the Coimbatore, Pollachi main road for the purpose of extracting lead
content from used and condemned car batteries by burning them. The Sub-Divisional Magistrate and Sub-Collector, Coimbatore, received
information from the resident IUDP Housing Unit, Kurichi, the Public of Kurichi area and children of K.P.M. Matriculation School that the locality
was increasingly becoming a place of health hazard and traffic risks, due to the presence of these two wayside factories, which were incessantly
emitting thick clouds of chemical smoke while burning the batteries and inhaling this smoke, containing poisonous gases like carbon monoxide, and
sulphur-di-oxide caused irritation and vomiting sensation among the residents. A local Doctor having a clinic in that area, by his letter dated 21st
September, 1985, addressed to the Executive Magistrate, had also endorsed the above view. Thereupon, the Executive Magistrate, finding that
the act of the petitioners amounted to public nuisance under S. 133(1)(b), Crl. P.C., which required immediate action, passed a conditional order
under S. 133(1) Crl. P.C., requiring the petitioners to cease carrying on the said burning of used car batteries in their factories or to appear and
show cause as to why, the said order should not be enforced. The petitioners, on receipt of the above notice, appeared and filed their reply
statement contending that their factories had been functioning, in a similar manner, for the last 18 years, with hundred labourers working, that they
have erected chimneys to a height of 55 ft. through which the charcoal smoke emitted was being let out into the air, that similar units like those of
the petitioners were functioning in different parts of Tamil Nadu, that there was no health hazard and no public nuisance and that, therefore, no
further action was necessary.
3. The Executive Magistrate thereupon commenced an enquiry, apparently under S. 138, Crl. P.C, in the course of which he received petitions
from certain Associations, like Tamil Nadu State Agriculture Association, Kurichi Town Agriculturists Association, Kurichi Town Congress
Committee, and All India Anna Dravida Munnetra Kazhagam, Eachanari and Ganeshapuram, insisting that the factories of the petitioners should be
closed down. The Executive Magistrate, addressed the District Health Officer, Coimbatore, to offer his opinion on the question as to whether this
would amount to health hazard and a reply was also received from the District Health Officer, dated 9th November, 1985, which forms part of the
records. Similarly, letters were also received from the Managing Director, Cheran Transport Corporation Limited, Coimbatore, to the effect that,
because of the thick smoke screen created by these units, an accident had occurred in the very place on 30th May, 1985, at 2 p.m. involving a
collision between their bus and private bus and that, therefore, the continuance of the factories was a traffic hazard as well. Thereafter, the
Executive Magistrate on 3rd December, 1985 inspected the factories and surrounding areas and prepared a report. Similar petitions from other
persons were also received by him on 7th January, 1986.
4. On 10th February, 1986, the Executive Magistrate questioned the petitioners. On 24th February, 1986, the District Health Officer,
Coimbatore, was examined, as also the Executive Officer of the Kurichi Town Panchayat.
5. On the basis of the statements so recorded by the Magistrate, and on basis of the petitions received from the several persons mentioned above
and on the basis of the notes of inspection of the locality made by him, the Executive Magistrate passed a final order under S. 138(2), Crl. P.C, in
the following terms:
(1) The counter-petitioners are directed to obtain relevant licence from the Local Authorities before they run their units and observe such other
preventive measures, to ensure the non-pollution of the area and until then, shut down their operations.
(2) The Executive Officer is directed to observe all formalities and to take technical opinion regarding the hazardous nature of their operations
before issue of license.
This order comes into force upon service, failing which it will be enforced by resorting to provisions of the I.P.C.
The Inspector of Police, Podanur is directed to ensure compliance of this order by the counter petitioners.
The order also contains a list of documents perused by the Executive Magistrate.
6. Aggrieved with the above order, the petitioners filed Crl. R.C No. 54 of 1986 and 53 of 1986 before the Sessions Judge, Coimbatore, who
dismissed the Revisions and confirmed the order passed by the Executive Magistrate. Hence the present petitions.
7. Thiru B.S. Gnanadesikan, learned Counsel for the petitioners, in Crl. M.P. No. 2485 of 1987 challenged the legality of the order on the
following grounds:-
(i) Since the Air (Prevention and Control or Pollution) Act, 1981 (Act 14 of 1981) (hereinafter referred to as the Act) provides for the prevention,
control and abatement of air pollution, any matter connected with the prevention of air pollution could be dealt with, only under the above Act and
its parallel provisions in the Criminal Procedure Code (for short, the Code) dealing with the prevention of air pollution as public nuisance, should
be deemed to have been impliedly repealed, after the passing of the said Act. According to the learned Counsel, any public nuisance caused by air
pollution which prior to 1981 had been dealt with under S. 133, Criminal Procedure Code could thereafter be dealt with only under the said Act.
It was, therefore, not open to the Executive Magistrate to invoke S. 133, Crl.P.C. if the public nuisance related to air pollution;
(ii) the procedure that was followed by the Executive Magistrate was not in conformity with S. 138, Crl.P.C. and that, therefore, even if the Code
could be taken to apply, the ultimate order passed could not be sustained in view of the violation of S. 138(1), Crl. P.C. Learned Counsel also
placed reliance upon a decision of the Kerala High Court in Tata Tea Ltd., v. State of Kerala 1984 K.L.T. 645., which I shall discuss later.
8. Thiru K.A. Panchapakesan, appearing for the petitioner, in Crl.M.P. No. 2622 of 1980 reiterated the above contentions.
9. Per contra, Thiru N. Natarajan, learned Counsel for the third respondent and Thiru K. Govindarajan, learned Counsel appearing for the ninth
respondent, contended that:-
(i) the Act was not comprehensive in nature but was limited in its applicability, only to certain areas and to certain types of air pollution and there
were areas, which were not covered by the Act, that therefore, the concept of an implied repeal could not be applied and that both the Act, as
well as the Code, would operate in different spheres. The decisions of the Kerala High Court relied upon by the learned Counsel for the
petitioners, rendered under the Water (Prevention and Control of Pollution) Act, 1974 (VI of 1974), would not apply to the provisions of the Act.
(ii) Chapter 10 of the Criminal Procedure Code deals with substantive law of providing expeditious remedy and no adversary system in the
proceedings was contemplated under it. Even if there was violation of the procedure laid down under the chapter in the absence of any substantial
prejudice to the aggrieved person, the proceedings will not be vitiated. The orders passed by the Executive Magistrate and confirmed by the
Sessions Judge, therefore, had to be sustained.
10. The following questions arise for consideration are:
(i) Whether the provisions in Chapter 10B of the Code relating to public nuisance, arising out of air pollution, stand impliedly repeated by Act 14
of 1981?
(ii) Whether the order passed by the Executive Magistrate could be legally sustained?
11. The answer to the 1st question would call for a comparative study of the object, scope, area of operation and effect of the Code as well as the
Act. S. 133, Crl.P.C. which enables an Executive Magistrate to deal with different kinds of Public nuisance, occurs in Chapter 10 of the Code,
dealing with maintenance of public order and tranquility. The above Chapter consists of four sub-headings: A. Unlawful assemblies. B. Public
nuisances. C. Urgent cases of nuisance or apprehended danger. D. Disputes as to immovable property. The chapter has been specifically enacted
empowering the Executive Magistrates, who are ultimately the custodians of law and order to resort to speedy remedies in different situations in the
interest of the public good. S. 133, Crl. P.C enumerates different kinds of nuisance that could be committed. The term ""public nuisance"" has not
been defined in the Code. However, S. 2(y) is to the effect that the words and expressions used in the Code and not defined, but defined in the
Indian Penal Code will have the meanings respectively assigned to them in the Indian Penal Code. S. 268, I.P.C. defines public nuisance as
follows:-
A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to
the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right.
12. S. 133(1), Crl.P.C. under which air pollution be brought, is as follows;-
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--
(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 in that consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed
or the keeping thereof regulated.
The Executive Magistrate, either on a report from a Police Officer or on other information, if he considers that a public nuisance is being
committed, shall pass a conditional order, under S. 133(1), Crl.P.C. requiring the person causing the nuisance, within a time to be fixed in the
order, to desist from continuing the nuisance or if he fails to do so to appear before him on a date to be fixed by him and to show cause why the
order should not be made absolute. If on receipt of the above order, the person appears and shows cause against the order, the Executive
Magistrate shall take evidence as provided under S. 138, Crl.P.C. In the course of taking evidence, it is open to the Magistrate to make local
investigation in the manner provided under S. 139, Crl.P.C. to summon and examine an expert. Finally, after the enquiry is concluded, if the
Magistrate is satisfied that the order either originally made or subject to such modification as he considers necessary, is reasonable and proper, he
shall make a final order either without modification or with such modification as may be necessary. Thereafter, under S. 141, Crl.P.C. a person
against whom an order is made is given a fixed time, to perform the act directed in the order. If the person fails to perform the act within the time
fixed, the executive Magistrate may cause it to be performed or may recover the cost of performing it either by sale of any building or other
property removed by his order or by the distress and sale of any other movable property of such person, either within his jurisdiction or even
outside. Under S. 143, Crl. P.C. the Magistrate may also order such a person, not to repeat or to continue a public nuisance. Violation of an order
passed under S. 143, Crl. P.C. is made punishable under S. 291 of the Indian Penal Code and violation of an order passed under S. 141(1), Crl.
P.C. is made punishable under S. 188 of I.P.C. A reading of the above provision makes it clear, that the Executive Magistrate, after the necessary
enquiry, has the power to direct the person causing nuisance, to remove the same and in the event of his failure to do so the Executive Magistrate,
can have the same removed and also pass orders preventing repetition or continuance of the public nuisance.
13. A comparative analysis of the scheme of the Act has also to be made. The Act and similar legislations against environmental pollution have
been enacted following decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June. 1972. In which
India also participated to take appropriate steps for the preservation of the natural resources of the earth which, among other things, include the
preservation of the quality of air and control of air pollution. Constitutional sanctity to the legislation, is found in Article 51A(g) dealing with
fundamental duties, wherein specific mention is made that it shall be the duty of every citizen of India to protect and improve the natural
environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Though the Constitution merely enumerates
duties, legislations have been passed, laying down the prohibitions as well as penalties. The Act is one such legislation.
14. Under the Act, the Central Board for the Prevention and Control of Air Pollution as well as the State Board for the above purpose are
constituted. Planning a comprehensive programme for the prevention control or abatement of air pollution and to secure the execution thereof, is a
function of both Boards, though at different levels. In the Schedule to the Act, certain Industries are described as coming within the purview of the
Act. Under S. 19 of the Act, certain areas are declared as air pollution control areas for the purpose of the Act. In the areas so notified operation
of any industrial plant, for the purpose of any industry specified in the Schedule is prohibited, except with the previous consent of the State Board.
The applicant has to make necessary application to the Board, which, after the necessary enquiry, may give consent. Once consent is given, the
owner of the industrial plant, shall install and operate the control equipment of such specifications, as the State Board may approve, or alter or
replace the same, in accordance with the directions of the State Board, keep the control equipments, in good running condition and erect or re-
erect chimney of such specifications as the Board may approve. The Board shall also under S. 17(1)(g) of the Act lay down standards for emission
of air pollutants into the atmosphere from industrial plants. S. 22 of the Act, requires the owners of industrial plant specified in the Schedule, not to
discharge emission of any air pollutant in excess of the standards laid down under S. 17(1)(g) of the Act. S. 23 of the Act empowers the Board, to
act in certain situations, when due to accident or other unforeseen act or event emission of air pollutant into the atmosphere in excess of the
standards laid down occurs or is apprehended to occur. S. 24 of the Act empowers the Officers of the State Board, to enter and inspect for
enforcing the Act. Under S. 26 of the Act, samples of air or emission from any chimney, flue or duct could be taken and after observing the
formalities laid down in that section, the same could be sent to the laboratory established or recognised by the State Board, for analysis and report.
The orders passed by the State Board are made appealable under S. 31 of the Act S. 37 of the Act penalizes violation the provisions of S. 21(5)
or S. 22 of the Act. The offences are made continuing offences. Other acts directed against the Board and members and property are made
punishable under S. 38 of the Act. The residuary per section is S. 39. S. 46 of the Act excluding jurisdiction of civil court in any matter which can
be dealt with by the authorities, coated under the Act, and S. 52 of the Act as overriding powers to the provisions of Act, over anything
inconsistent contained any other enactment.
15. A comparative study of the area action and the powers of the Executive Authority under Chap. XB of the Code the powers and the functions
of the code under the Act, reveals that there are areas relating to air pollution which come within the ambit of the act and therefore be dealt with
only under code.
16. In the first instance, while the applies to the whole of India and for the sent purpose throughout a particular the Act is made applicable only to
those which the State Government by Notice has declared as air pollution control. The Act, therefore, would not apply to areas. It would be
reasonable to company hend, that the State Government would only certain limited areas as air pollution control areas, for the purpose of the Act
is so, since the Act itself had been keeping in mind, the tendency of the main of industries, to congregate in areas industrialised and those areas are
populated in view of the labour being need for the industries. Then again, the motion of the Act is only limited to those areas which create health
hazards, and are mentioned in the Schedule to, the Beyond that the Act can have no open. Further, discharging emission, of the pollutant in excess
of the standards laid under the Act alone, would come with purview of the Act. Where therefore or occupation causing air pollution is on in a
manner, which is injurious to health or physical comfort of the community, in an area which has not been declared as air pollution control area and
the trade or occupation is not one included in the Schedule to the Act, the only authority that could deal with the situation, is the Executive
Magistrate acting under the Code. There could also be cases of trade or occupation carried on in a manner injurious to the health of the community
and which would, therefore, amount to public nuisance, but may not actually be in violation of the standards of emission of air pollutant fixed under
the Act. These cases also, could be dealt with only under the Code by the Executive Magistrate. Further the Act is ineffective and silent, in the
matter of removal of the air pollution or public nuisance. Under the Act, as has, already been indicated above, the Board has no powers to remove
air pollution or to pass necessary orders requiring the offender to remove the offending emission. The only provision under the Act, wherein the
State Board could take arbitrary measures to mitigate emission of air pollutants is under S. 23 of the Act which is only in the case of an accident or
other unforeseen act or event. However, under S. 141, Crl. P.C., we find that after the passing of a final order under S. 138(2), Crl. P.C, a notice
is issued to the person against whom an order is made requiring him to perform the act within the time fixed in the notice and under sub-S.(2) if the
act is not performed within the time fixed, the Executive Magistrate is empowered to have it performed and also recover the cost of performing it,
from the person concerned. Further, the Act is silent and ineffective in the matter of prevention of any such recurrence. Under S. 143, Crl. P.C, the
Executive Magistrate has the power to pass an order, requiring the person not to repeat or to continue the public nuisance.
17. It is also seen that air pollution is made punishable under S. 278, I.P.C, though the penal provision would require a particular mental state and
the pollution to be of a particular quality. S. 278, I.P.C, punishes any one who voluntarily vitiates the atmosphere in any place, so as to make it
noxious to the health of persons in general, dwelling or carrying on business in the neighbourhood or passing along a public way.
18. Learned Counsel for the petitioners placed reliance upon a decision of a Single Judge of the Kerala High Court in Tata Tea Ltd. v. State of
Kerala 1984 K.L.T 645. wherein the learned Judge held that S. 133, Crl. P.C, in so far as it relates to prevention and control of water pollution
stood repealed on passing of the Water (Prevention and Control of Pollution) Act, 1974. Learned Judge, after analysing the provisions of that Act,
has held that the above Act is a complete Code in itself and all the remedies which could be provided by an Executive Magistrate under S. 133,
Crl. P.C. could be provided by the Authorities constituted under that Act. This decision would not apply to the present Act dealing with Air
Pollution, since the scheme of the present Act is totally different from the scheme of the above Act dealing with water pollution. Under S. 33 of the
Water (Prevention and Control of Pollution) Act, 1974, the Board is empowered to make an application to a criminal court, for restraining any
person who is likely to cause pollution and the court, on that application may direct the person, to desist from taking any such action as is likely to
cause pollution or to remove from such stream or well, such matter. The Court can also pass an order authorising the Board, in case the direction
for removal of any matter from the stream or well, is not complied with by the person, to undertake the removal of disposal of the matter, in such
manner as the court could specify and all expenses incurred by the Board, in removing any matter, can be recoverable from the person concerned
as arrears of land revenue. In several other respects also, the Water (Prevention and Control of Pollution) Act is different from the present Act.
The decision rendered by the Kerala High Court under the Water (Prevention and Control of Pollution) Act, therefore, would not apply to the Act.
19. The foregoing the analysis of the two legislations shows that the object, scope, area of operation and the effect of the two legislations and the
powers of the authorities empowered to implement them are different. In relation to public nuisance by air pollution, the provisions of the Code are
wider in application and more effective and are intended primarily to remove public nuisance and prevent its recurrence. The latter Act is limited in
its operation to certain areas and to certain kinds of pollutants and is primarily intended to control, on scientific lines, certain types of air pollution
and penalise the offender. I am unable to see any inconsistency or repugnancy between the two legislations so as to infer an implied repeal of the
relevant provisions of the Code, by virtue of the overriding provision contained in S. 52 of the Act. The two legislations are complementary to each
other and are intended to function side by side, in their own parallel channels. They do not even overlap. The provisions of chapter 10B of the
Code relating to public nuisance, arising out of air pollution cannot be taken to be impliedly repealed by the Air (Prevention and Control of
Pollution) Act 1981 (Act 14 of 1981).
20. The next question that arises for consideration is whether the procedure laid down in S. 138(1), Crl.P.C. has been followed. According to S.
138(1), Crl.P.C, the Executive Magistrate is required to take evidence as in a summons case. S. 254, Crl.P.C. requires the Magistrate in a
summons case to take all evidence as may be produced, in support of the prosecution and then to hear the accused and take all such evidence as
the accused may produce in his defence. Though the proceedings under Chapter10B are not adversary in nature and are primarily intended for
providing expeditious remedy in summary manner to avert public harm, still the rules of evidence and the rules of admissibility will be applicable to
such proceedings as well. Though, initially at the time of passing a conditional order under S. 133(1), Crl.P.C. it is open to the Magistrate to act on
a police report or on any other information or on taking such evidence, if any as he thinks fit, later in the course of an enquiry under S. 138(1),
Crl.P.C the Executive Magistrate has to follow the procedure indicated under the Code. In the instant case the Magistrate has relied upon a letter,
dated 21.9.1985 of a medical practitioner having a clinic in that area and has also based his order on the contents of petitions of several persons
mentioned in the order, without examining such persons and without giving an opportunity to the Petitioners to cross-examine such persons.
Reliance has been placed upon a letter of the Managing Director of the Cheran Transport Corporation, referring to an accident said to have taken
place on 30.5.1984 and alleging that the petitioner''s units create traffic hazard. The above Managing Director has not been examined nor has he
been made available to the petitioners for cross-examination to test the truth of the allegations. Further, the Executive Magistrate appears to have
made a local inspection on 3.12.1985 and has relied on his findings and his report, a portion of which has been extracted in the body of the order.
The grievance of the petitioners is that the Magistrate cannot himself make an inspection, that no notice of local inspection was given and the report
prepared by the Executive Magistrate was also not made available to them. The impugned order makes reference to petitions received from one
K. Natarajan and four others, dated 7.1.1986. None of those persons has been examined. The procedure followed by the Executive Magistrate is
in violation of S. 138(1) of the Code requiring all evidence to be taken in the manner provided in a summons case under S. 254, Crl.P.C I am
unable to agree with the contention of the learned Counsel for the respondents that unless substantial prejudice is proved to have been caused to
the petitioners mere failure to follow the procedure laid down in S. 138(1), Crl.P.C. would not vitiate the order. The Executive Magistrate acting
under S. 138(1), Crl,P.C. is, by virtue of the Explanation to S. 397(1),Crl.P.C., deemed to be a criminal court, inferior to the Sessions Judge. He
is performing a judicial function and his order is liable to be revised by the Sessions Judge under S. 397(1), Crl.P.C. The procedure indicated in S.
138(1) requiring evidence to be taken as in a summons case has therefore to be followed and any violation thereof, will vitiate the order, without
reference to any prejudice to the affected party. The final order passed by the Executive Magistrate under S. 138(2), Crl.P.C. cannot be
sustained. It has therefore, to be set aside.
21. However in view of the fact, that no illegality is attached to the initial order passed by the Executive Magistrate under S. 133(1), Crl.P.C.,
dated 27.9.1985 the same is sustained and all proceedings conducted subsequent to the above order are hereby set aside. The Executive
Magistrate, will proceed from the stage of passing of the conditional order under S. 133(1), Crl.P.C, cause summons to be sent to the Petitioners
under S. 134, Crl.P.C, and deal with the matter in accordance with the subsequent provisions in that Chapter. This petition is ordered accordingly.
