State of M.P. v Kedia Leather & Liquor Ltd. (2003)

It answers a question that a student meets the moment the general law and the special pollution statutes are studied together: once Parliament has enacted the Water Act and the Air Act, is the old magisterial power to abate a public nuisance still available against a polluting factory?

The Madhya Pradesh High Court had said no — that the two Acts had impliedly repealed s. 133 for pollution cases. The Supreme Court reversed. The two regimes operate side by side.

The Sub-Divisional Magistrate of the area served orders under s. 133 of the Code on the respondents, who owned industrial units, directing them to close their industries, on the allegation that "serious pollution was created by discharge of effluent from their respective factories and thereby a public nuisance was caused".

The units challenged the proceedings before the High Court under s. 397 of the Code. Their argument was that "by enactment of Water Act and the Air Act there was implied repeal of Section 133 of the Code". The SDM contested it on the ground that "the provisions of Water Act and the Air Act operate in different fields".

The High Court accepted the units' argument. It held that the provisions of the Water and Air Acts "are in essence elaboration and enlargement of the powers conferred under Section 133 of the Code"; that water and air pollution "were held to be species of nuisance or of the conduct of trades or occupation injurious to the health or physical comfort of the community"; that, dealing with special types of nuisance, they "ruled out operation of Section 133 of the Code"; and that "existence and working of the two parallel provisions would result not only in inconvenience but also absurd results". It concluded that the SDM had no jurisdiction to act under s. 133.

The State appealed. By the time the appeal was heard, interim orders of 2 January 2001 had led to action against delinquent officials of the Madhya Pradesh Pollution Control Board, the Board had been reconstituted, and the factories had been stopped, so the matter was in one sense academic. Both sides asked the Court to decide the legal question anyway "considering the impact of the decision which would have far reaching consequences".

Whether the Water Act 1974 and the Air Act 1981 impliedly repealed s. 133 of the Code so far as public nuisance by water and air pollution is concerned.

• Placement. Section 133 "appears in Chapter X of the Code which deals with maintenance of public order and tranquility" and falls under the heading "public nuisance".
• Nuisance is not exactly definable. Citing Halsbury: "even at the present day there is not entire agreement as to whether certain acts or omissions shall be classed as nuisances or whether they do not rather fall under other divisions of the law of tort". Citing Vasant Manga Nikumba v Baburao Bhikanna Naidu: "nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence".
• Urgency is of the essence. The object "is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public".
• It is a present remedy, not an anticipatory one. "It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential nuisance, and on the other hand applies when the nuisance is in existence." This is the limit students most often miss.
• Section 133 compared with s. 144. "While the latter is more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute."
• The character of the proceeding. "The proceedings are more in the nature of civil proceedings than criminal proceedings." The person against whom action is taken "is not an accused within the meaning of Section 133 of the Code"; he "can give evidence on his own behalf and may be examined on oath"; and "Proceedings are not the proceedings in respect of offences."

Before comparing the statutes the Court restated the constitutional position in three sentences that are worth memorising for any Art. 21 question:

"Environmental, ecological air and water pollution amount to violation of right to life assured by Article 21 of the Constitution of India, 1950. Hygienic environment is an integral facet of healthy life. Right to live with human dignity becomes illusory in the absence of humane and healthy environment."

The presumption. "There is presumption against a repeal by implication", and the reason "is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provision, the intention is clearly not to repeal the existing legislation."

Strengthened where the new Act has an express repealing section. Where the new Act names the Acts it expressly repeals, the presumption against implied repeal of other laws "is further strengthened on the principle expressio unius (persone vel rei) est exclusio alterius" — the express mention of one is the exclusion of another, as stated in Garnett v Bradley.

When it is rebutted. "The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred."

The three questions. The Court set out the test as three questions:

1. "Whether there is direct conflict between the two provisions."
2. "Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law".
3. "Whether the two laws occupy the same field."

And the standard: the Court leans against implying a repeal, "unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together."

The appeals were allowed. There was no implied repeal.

The reasoning has two limbs.

First, the fields are different. "The area of operation in the Code and the pollution laws in question are different with wholly different aims and objects; and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side."

Second, the functions are different. This is the sentence to quote: "While as noted above the provisions of Section 133 of the Code are in the nature of preventive measures, the provisions contained in the two Acts are not only curative but also preventive and penal." Hence "The provisions appear to be mutually exclusive and the question of one replacing the other does not arise."

The Court noted expressly that "The provisions of Section 133 of the Code can be culled in aid to remove public nuisance caused by effluent of the discharge and air discharge causing hardship to the general public."

It left the merits alone: whether there was any infraction of s. 133 or of the two Acts was "a matter which shall be dealt with by the appropriate forum", on which the Court expressed no opinion, and pending applications before the Board were to be disposed of by the Board.

| | s. 133 CrPC (now BNSS s. 152) | Water Act 1974 and Air Act 1981 | |---|---|---| | Character | Preventive | Preventive, curative and penal | | Who acts | Executive Magistrate on a police report or other information | Central and State Pollution Control Boards, and courts on their complaint | | Timing | Only where the nuisance is in existence | Consent regime operates before an outlet or plant is established | | Nature of proceeding | More in the nature of civil proceedings; the person is not an accused | Prosecution for offences; the Boards' powers under Water Act ss. 30, 32, 33 and Air Act ss. 18, 20, 22-A | | Speed | Immediate, local, cheap | Institutional, standard-setting, slower |

Note the specific powers the Court listed, because a question on this case often asks you to show that the special statutes already contain equivalent machinery: Water Act s. 30 (power of the State Board to carry out certain works), s. 32 (emergency measures in certain cases), s. 33 (power of the Board to apply to courts for restraining apprehended pollution); Air Act s. 18 (power to give directions), s. 20 (instructions for ensuring standards), s. 22-A (application to court to restrain persons from causing air pollution). The existence of those powers is what made the implied-repeal argument plausible — and the Court's answer is that overlap is not repugnancy.

1. The Water Act and the Air Act did not impliedly repeal s. 133 of the Code; the three statutes operate in different fields and may co-exist notwithstanding some overlap.
2. Section 133 is preventive, applies only to a nuisance in existence, is conditional in its order, and the proceedings are more civil than criminal in character, the person proceeded against not being an accused.
3. Air and water pollution violate Art. 21.