T.S. Doabia, J.
1. Pollution, destruction of scenic beauty, disturbance of the ecology and the environment are some of the demonstrated consequences of Industrial sprawl. If unchecked, it may suffocate the human spirit reducing the people to the status of cattle. It may make the living an almost insufferable burden. If this happens and if there is threat to the aesthetic values then it is possible for the police power of the State to step in so that there is elimination of filth, stench and unhealthy environment. It appears that a step was taken in this regard. An order was passed under Section 144 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). This order which is to outrun its efficacy of two months on 12th of October, 1995, is being challenged in this petition under Article 226 of the Constitution of India as void ab initio. The argument advanced in that for the acts of omission and commission, cognizance cannot be taken under the Code as an exclusively separate procedure has been provided under the Central Acts. Before noticing the legal submissions made in this case; facts in brief be noticed :
2. On thirteenth day of August, 1995, the Additional District Magistrate, Gwalior, was satisfied of the fact that the Gwalior unit run by the Gwalior Distillers Limited, Gwalior and Rairu Distilleries Limited, Rairu, are running their industrial units in a manner which has caused loss to human life. It is indicated that two persons died on account of the poisonous gases having been emitted by the effluent on 13th of August, 1995. It is also stated that loss has also been caused to plant life in the area. Drinking water is again said to have been contaminated. It is further stated that there is a seepage of contaminated water in the soil and the underground water has been rendered unfit for human consumption. Taking note of the above facts, the Additional District Magistrate passed an order to the effect that the factory should remain closed for a period of two months. Further directions were also given. These are to the following effect:
(a) Steps should be taken with a view to see that the water containing poisonous element is not permitted to be discharged in a manner which may cause damage to the health and sanitary conditions in the locality; thus keeping the human, animal and plant life free from ill-effects;
(b) The effect of pollution be controlled by taking appropriate steps;
(c) The effect of spreading poisonous gases and water should be checked so that the agriculturists and labourers working in the fields are not exposed to any danger to their healthy existence; and
(d) Lastly, it was stated that on account of the above factors there is a lot of resentment in the area and there is every possibility of breach of peace in the local area.
3. I am of the view that the action taken by the Additional District Magistrate cannot be sustained. There exists three statutes dealing with steps to be taken to prevent pollution of water, air and to keep it free from ill-effects which are likely to be caused if not checked properly. These statutes are :
(i) Water (Prevention and Control of Pollution) Act, 1974;
(ii) Air (Prevention and Control of Pollution) Act, 1981 and
(iii) Environment Protection Act, 1986.
These three statutes lay down detailed procedure for seeing that water, air and environment do not suffer from the ill-effects of industrial effluents.
4. First, provisions of Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to 1974 Act) be seen.
5. Sections 16 and 17 of 1974 Act, provide for construction of Central and State Boards. Samples of effluents can be taken under Section 21 of the Act. Use of a well or stream for disposal of polluting water can be ordered to be slopped under Section 24 of the Act. Permission to run an industry or refusal or withdrawal of consent is dealt with under Section 27 of the Act. Emergency measurers can be taken to see that wells and streams are not polluted. Provisions in this regard are contained in Section 33 of the Act. Sections 24, 43 and 44 are relevant and these be noticed:
24. Prohibition on use of stream or well for disposal of polluting matter, etc.-
(1) Subject to the provisions of this section :
(a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any (stream or well or sewer or on land) or
(b) no person shall knowingly cause for permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.
(2) A person shall not be guilty of an offence under Sub-section (1), by reason only of having done or caused to be done any of the following acts, namely :
(a) constructing, improving or maintaining in or across or on the bank or bed of any stream any building, bridge, weir, dam, sluice, dock pier, drain or sewer or other permanent works which he has a right to construct, improve or maintain;
(b) depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for supporting, repairing or protecting the bank or bed of such stream provided such materials are not capable of polluting such stream;
(c) putting into any stream any sand or gravel or other natural deposit which has flowed from or been deposited by the current of such stream;
(d) causing or permitting with the consent of the State Board, the deposit accumulated in a well, pond or reservoir to enter into any stream.
(3) The State Government may, after consultation with, or on the recommendation of, the State Board, exempt, by notification in the Official Gazette, any person from the operation of Sub-section (1) subject to such conditions if any, as may be specified in the notifications and any condition so specified may by a like notification be altered, varied or amended.
43. Penalty for contravention of provisions of Section 24- Whoever contravenes the provisions of Section 24 shall be punishable with imprisonment for a term which shall not be less than (one year and six months) but which may extend to six years and with fine.
44. Penalty for contravention of Section 25 or Section 26- Whoever contravenes the provisions of Section 25 or Section 26 shall be punishable with imprisonment for a term which shall not be less than (one year and six months) but which may extend to six years and with fine.
6. Similar machinery and provisions exist in Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to Act of 1981). Penalties have been provided. See Section 38 of the Act of 1981.
7. Environment (Protection) Act, 1986, does take notice of persons permitting emissions or discharges in excess of prescribed standards and any person committing breach of the provision of the above Act can be dealt with under Section 15 of the Act of 1986.
8. The argument raised is that when there is special statute dealing with a particular subject then this should be resorted to. The principle that special provisions should override the general provisions is being invoked. In J. K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of Uttar Pradesh, AIR 1961 SC 1170. It was observed that the general provisions should yield to a specific provisions. The relevant observations at page 1174 be noticed :
The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly, (1859-53 ER 1032) quoted in Craies on Statute Law at p. 206,6th Edition, Romilly, M. R., mentioned the rule thus:-
The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.
The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned: De Winton v. Brecon. (1858) 28 LJ Ch 598. Churchill v. Crease, (1828) 5 Bine 177, United States v. Chase. (1889) 135 US 255 and Carroll v. Greenwich Ins. Co. (1905) 199 US 401.
Similar view was expressed in the case of Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey. AIR 1966 SC 1931 and Damji Valji Shah v. Life Insurance Corpn. of India, AIR 1966 (sic). In the latter case, Damji Valji Shah (supra) it was observed that the provisions of Life Insurance Corporation would prevail over the Companies Act of 1956. Thus the maxim generalia specialibus non derogant is being rightly invoked in this case.
9. As a matter of fact the question as to whether the proceedings can be taken under the Code of Criminal Procedure. 1973. when there exist a separate remedy was gone into by this Court in Criminal Revision No. 108 of 1987. This petition was filed against an order passed by the Sub-Divisonal Magistrate, who had refused to proceed under the Code of Criminal Procedure, 1973. The prayer made was that the view taken by the Magistrate is incorrect. In para 17 of the order this Court observed as under:
In the ultimate analysis I find that in view of the Special Acts, the learned S.D.M. was right in holding that he has no jurisdiction to proceed with the matter which is in relation to acts which constitute offences under the Water Act and the Air Act.
Accordingly, I am of the view, that as a specific provisions exist in the aforementioned Central Acts, the Additional District Magistrate was not competent to pass an order under Section 144 of the Code.
10. Even though. I have come to the conclusion that the Additional District Magistrate was not within his rights to proceed under the Code, the matter cannot left here. Something has to be said in favour of the persons who are said to be feeling ill-effects of pollution.
11. In Mandu Distillers Private Limited v. M. P. Pardushan Niwaran Mandal. Writ Petition No. 2038 of 1993. the precise question was considered. It was noticed 70% of the water available in this country is polluted. Concern was shown for the environment by referring to Article 48A of Constitution. This contains Directive Principle of State Policy impressi ng upon the State to protect and safeguard forest and wild life. Even though the action taken by the Board was quashed, but it was observed :
(a) The respondents may issue fresh show cause notices to the petitioners, setting out, without obscurity, all grounds specifically, like absence of consent or renewal, limit of production, types of pollution controls, objectionable discharge of effluent, non-conformity with standards, extent of detriment to public health etc. etc. and remedial measures necessary to incinerate pollution and shall give reasonable opportunity to them to represent their cases and then decide the question afresh justly and fairly in terms of Section 33A or other Sections of the Act within a period of forty-five days from today. It is clarified that in this exercise, the respondent may if expedient, also consider the propriety of deputing expert or experts to inspect the places in terms of Section 23 of the Act and after hearing the occupiers to submit – report – in that behalf. It may also draw sample of water in presence of occupierand subject it to proper test in terms of Section 21(1) of the Act as an aid to take proper decision and to issue proper directions.
(b) the respondents sha’.l have freedom within limits of law to suggest proper ways and means to safeguard the interests of both petitioners and people in fulfilment of the objects of the Act in true spirit and to see that production and purity co-exist unless stoppage of the former became inevitable to maintain purity of the later; and
(c) The petitioners till fresh decision by the respondent, as directed above, shall remain restrained from discharging trade effluents through any stream, channel or other source reaching rivers Mohni, Chambal, Parwati, Sheonath. Kharoon or any other river or lake in use by the public and shall further ensure that discharge even on private lands as contended, does not find its way to the rivers by lack of adequate steps in this behalf.
Thus Pollution Board or Pardushan Nirwanu Mandal would step in and perform their duty. Let a copy of this order be made available to the Madhya Pradesh Pardushan Nirwan Mandal. This Mandal would suggest remedial measures and if these are not complied with it shall not shirk from proceedings further with a view to coerce the petitioner Distillery to sec reason if it is unreasonable. The above Board would inspect the factory within two weeks. Whatever was said by this Court in Mandu Distilleries Pvt. Limited’s case and what has been quoted above would apply to this case also.
12. Shri Bhargava, Advocate has filed an application seeking intervention. According to him, local population is suffering from the ill-effect of the pollution. As indicated above, a direction has been given to the Mandal/Board to inspect the factory in question within two weeks. This should satisfy the local resident. There is a suggestion that there should be an inspection by an independent agency. No mala fide has been suggested against the Board. As such, this prayer cannot be accepted. Again, the petitioner-Distillery has given an undertaking that none of the discharge from the factory premises would be permitted to go out of the factory premises. This should be enough to safeguard the interest of local resident. However, with a view to see that this undertaking is complied with, a commission is appointed. Shri K. K. Lahoti and Shri S. K. Jain, Advocates, are appointed as Commissioners in this regard. They may make ajoint or separate inspection once in fifteen days. They shall be paid Rs. 2.200/-each per visit and Rs. 300/- for conveyance charges. This Commission would function for two months. It shall make its report available to this Court and furnish a copy to the petitioner also.
13. This petition is allowed. Order passed by the Additional District Magistrate is set aside. This is subject to the riders indicated above. No order as to costs.