Thursday 19 April 2012

Concept of public nuisance

To bring an application of section 133 of CRPC, their must be imminent present danger to property and consequential nuisance to public. It does not apply to future likelihood or what may happen at some latter point of time. It does not deal with potential nuisance but it deals with existing nuisance.
Decided On: 19.08.2003
State of M.P.
Kedia Leather & Liquor Ltd. and Ors.
Hon'ble Judges:
Doraiswamy Raju and Arijit Pasayat, JJ.
Arijit Pasayat, J.
1. View expressed by High Court of Madhya Pradesh, Jabalpur Bench at Indore holding
that after introduction of Water (Prevention and Control of Pollution) Act, 1974
(hereinafter referred to as the 'Water Act') and the Air (Prevention and Control of
Pollution) Act, 1981 (hereinafter referred to as the 'Air Act'), there was implied repeal of
Section 133 of the Code of Criminal Procedure, 1973 (in short the 'Code', is questioned in
these appeals.

2. Factual background needs to be noted in brief as legal issues of pristine nature are
involved. The Sub-Divisional Magistrate (hereinafter referred to as the 'SDM') of the area
concerned served orders in terms of Section 133 of the Code directing the respondents
who owned industrial units 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 preliminary issues and the proceedings initiated by the
SDM were questioned by the respondents herein before the High Court under Section
397 of the Code.
3. The main plank of their arguments before the High Court was that by enactment of
Water Act and the Air Act there was implied repeal of Section 133 of the Code.
4. The plea was contested by the SDM on the ground that the provisions of Water Act
and the Air Act operate in different fields, and, therefore, the question of Section 133 of
the Code getting eclipsed did not arise.
5. The High Court referred to various provisions of the Water Act and Air Act and
compared their scope of operation with Section 133 of the Code.
6. The High Court was of the view that the provisions of the Water and the Air Acts are
in essence elaboration and enlargement of the powers conferred under Section 133 of the
Code Water and Air pollution were held to be species of nuisance or of the conduct of
trades or occupation injuries to the health or physical comfort to the community. As they
deal with special types of nuisance, they ruled out operation of Section 133 of the Code.
It was concluded that existence and working of the two parallel provisions would result
not only in inconvenience but also absurd results. In the ultimate, it was held that the
provisions of the Water and Air Acts impliedly repealed the provisions of Section 133 of
the Code, so far as allegations of public nuisance by air and water pollution by industries
or persons covered by the two Acts are concerned. As a consequence, it was held that the
SDM had no jurisdiction to act under Section 133 of the Code.
7. Learned counsel for the appellant-State submitted that the view expressed by the High
Court is not legally tenable. The three statues operate in different fields and even though
there may be some amount of over-lapping, they can co-exist. A statutory provision
cannot be held to have been repealed impliedly by the Court. Learned counsel for the
respondents-units submitted that this Court had occasion to pass interim orders on
2.1.2001. Exception was taken to the manner of functioning of the Madhya Pradesh
Pollution Control Board (in short the 'Board') and directions were given to take necessary
action against the delinquent officials. Proceedings were initiated and on the basis of the
reports filed by the functionaries of the reconstituted Board, functioning of the factories
had been discontinued. The legality of the proceedings and the orders passed therein have
been questioned and the Board has been moved for grant of necessary permission for
making the factories functional. In this background it is submitted that the issues raised
have really become academic. Though, learned counsel for the appellant-State and the
Board accepted the position to be factually true, it is submitted that considering the
impact of the decision which would have far reaching consequences, the legal issues may
be decided and appropriate directions should be given so far as the functioning or closure
of the factories aspect is concerned.
8. Section 133 of the Code appears in Chapter X of the Code which deals with
maintenance of public order and tranquility. It is a part of the heading 'public nuisance'.
The term 'nuisance' as used in law is not a term capable of exact definition and it has been
pointed out in Halsbury's Laws of England that "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". In Vasant Manga
Nikumba and Ors. v. Baburao Bhikanna Naidu (deceased) by Lrs. and Anr. (1995 Supp.
(4) SCC 54) it was observed that nuisance is an inconvenience which materially
interferes with the ordinary physical comfort of human existence. It is not capable of
precise definition. 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 nuisance
is the concomitant act resulting in danger to the life or property due to likely collapse etc.
The object and purpose behind Section 133 of the Code 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 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. It has to be noted that some times there is a confusion between Section 133 and
Section 144 of the Code. 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 proceedings are more in the nature of civil proceedings than criminal
One significant factor to be noticed is that 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. Proceedings are not the proceedings in respect of
offences. The Water Act and the Air Act are characteristically special statutes.
9. The two statutes relate to prevention and control of pollution and also provides for
penal consequences in case of breach of statutory provisions. Environmental, ecological
air and water pollution amount to violation of right to life assured by Article 21 of the
Constitution of India, 1950 (in short 'the Constitution'). 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.
10. Chapter V of the Water Act deals with prevention and control of water pollution.
Similarly, Chapter IV of the Air Act deals with prevention and control of air pollution.
Sections 30, 32 and 33 of the Water Act deal with power of the State Board to carry out
certain works, emergency measures in certain cases and power of Board to make
application to the Courts for restraining apprehended pollution respectively. Under
Sections 18, 20 and 22-A of the Air Act deal with power to give directions, power to give
instructions for ensuring standards and power of Board to make application to Court for
restraining persons from causing air pollution respectively.
11. 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. To that extent, learned counsel for the appellant is correct in his
12. There is presumption against a repeal by implication; and the reason of this rule 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 provisions, the intention is clear not to repeal the existing legislation. (See:
Municipal Council Palai through the Commissioner of Municipal Council, Palai v. T.J.
Joseph, Northern India Caterers (Private) Ltd. and Anr. v. State of Punjab and Anr.,
Municipal Corporation of Delhi v. Shiv Shanker and Ratan Lal Adukia and Anr. v. Union
of India. When the new Act contains a repealing section mentioning the Acts which it
expressly repeals, the presumption against implied repeal of other laws is further
strengthened on the principle expressio unius (Persone vel rei) est exlusio alterius. (The
express intention of one person or thing is the exclusion of another), as illuminatingly
stated in Garnett v. Bradley (1878) 3 AC 944 (HL). The continuance of existing
legislation, in the absence of an express provision of 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 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. (See: A.G. v. Moore (1878) 3 Ex. D 276,
Ratanlal's case (supra) and R.S. Raghunath v. State of Karnataka and Anr.
13. The necessary questions to be asked are:
(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.
(See: Pt. Rishikesh and Anr. v. Salma Begum (Smt.), and Shri A.B. Krishna and Ors. v.
The State of Karnataka and Ors. (JT 1988(1) SC 613)
14. The doctrine of implied repeal is based on the theory that the Legislature, which is
presumed to know the existing law, did not intend to create any confusion by retaining
conflicting provisions and, therefore, when the court applies the doctrine, it does not
more than give effect to the intention of the Legislature by examining the scope and the
object of the two enactments and by a comparison of their provisions. The matter in each
case is one of the construction and comparison of the two statutes. The Court leans
against implying a repeal, "unless two Act 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." (See Craies on Statute
Law, Seventh Edition, page 366, with reference to Re: Barrey (1936) Ch. 274). To
determine whether a later statute repeals by implication an earlier, it is necessary to
scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this
is done, it is impossible to ascertain whether any inconsistency exists between the two
enactments. 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.
15. 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. The provisions appear to be mutually exclusive and the
question of one replacing the other does not arise. Above being the position, the High
Court was not justified in holding that there was any implied repeal of Section 133 of the
Code. The appeals deserve to be allowed to the extent indicated above, which we direct.
16. However, if applications are pending before the Board, it would be appropriate for the
Board to take necessary steps for their disposal. The question whether there was no
infraction under Section 133 of the Code or the two Acts is a matter which shall be dealt
with by the appropriate forum, and we do not express any opinion in that regard.
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