STATE OF M.P. V. KEDIA LEATHER & LIQUOR LTD., AIR 2003 SC 3236

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FACTS AND CASE HISTORY

The Sub-Divisional Magistrate (SDM) of the area served orders under Section 133 of the Code of Criminal Procedure, 1973 (the ‘Code’) directing the respondents, who owned industrial units, to close their industries. The allegation was that serious pollution was created by the discharge of effluent from their respective factories, thereby causing a public nuisance.

The respondents questioned the SDM's preliminary proceedings before the High Court, arguing that the subsequent enactment of the Water (Prevention and Control of Pollution) Act, 1974 (the ‘Water Act’) and the Air (Prevention and Control of Pollution) Act, 1981 (the ‘Air Act’) caused an implied repeal of Section 133 of the Code.

The High Court accepted this plea. It viewed the Water and Air Acts as an elaboration and enlargement of the powers conferred under Section 133 of the Code. Since these special acts dealt with special types of nuisance (water and air pollution), the High Court held that they ruled out the operation of Section 133 of the Code. Consequently, it held that the SDM had no jurisdiction to act under Section 133.

ISSUES

1. Whether after introduction of the Water Act and the Air Act, there was implied repeal of Section 133 of the Code of Criminal Procedure, 1973?

2. Whether there is direct conflict between the two provisions?

3. Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law?

4. Whether the two laws occupy the same field?

CASES REFERRED

• Vasant Manga Nikumba v. Baburao Bhikanna Naidu (deceased) by Lrs. [1995 Supp.(4) SCC 54]: Nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency.

• Garnett v. Bradley [1878) 3 AC 944 (HL)]: The burden of proving the repeal by implication lies on the party asserting the same. A repeal is inferred by necessary implication only when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. If they can be read together, a repeal will not be inferred.

JUDGEMENT

The Court held that the two statutes, the Air Act and the Water Act, relate to prevention and control of pollution and provide for penal consequences. The Court first grounded the issue in constitutional law:

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.

Section 133 Cr PC is Still Operative

The Court affirmed 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.

On the Doctrine of Implied Repeal

The Court leaned against implying a repeal:

• The doctrine of implied repeal applies only when the later Act's provisions are so inconsistent or repugnant that the two cannot stand together.

• The Court must give effect to the intention of the Legislature by examining the scope and the object of the two enactments.

• The provisions of Section 133 of the Code are in the nature of preventive measures (focused on immediate closure/removal of existing nuisance), while the provisions contained in the two Acts are not only curative but also preventive and penal (focused on long-term regulation, licensing, and detailed standards).

• Because the two laws serve slightly different aims and operate in different fields (one general, focused on immediate public nuisance; the others specific, focused on technical regulatory standards), they are not mutually exclusive.

Hence, the High Court was not justified in holding that there was any implied repeal of Section 133 of the Code.