Krishna Panicker and Others vs Appukuttan Nair and Another

Chettur Sankaran Nair, J.—Petitioners challenge an order made by the Sub-divisional Magistrate, Thiruvananthapuram under Chapter X of the Code of Criminal Procedure, directing abatement of nuisance. The order was made on a complaint, that Petitioners had obstructed free flow of water.

Relying on the decision of a learned Single Judge of this Court in Tata Tea Ltd. v. State of Kerala 1984 KLT 645, called the Tata Tea Case 1984 KLT 645 hereinafter, Petitioners submit that the impugned order is bad for want of jurisdiction. The Magistrate did not follow the procedure indicated in Section 138of the Code, and a local inspection was made contrary to the provisions of Section 139 of the Code, state Petitioners. According to them, M/s Gopalakrishnan Nair, Sulochanan Nair, Thankappan, Latheef and Ors. , who are not parties to the proceedings, had raised the level of their paddy fields, and this was responsible for waterlogging.

In Tata Tea case 1984 KLT 645 the learned Judge held that provisions of Section 133 of the Code of Criminal Procedure stood repealed by implication, by the Water (Prevention and Control of Pollution) Act, 1974, called ''the Pollution Act'' hereinafter. The learned Judge observed:

The preamble of the Act makes it clear that it has been enacted to provide for the prevention and control of water pollution and to maintain or restore wholesomeness of water and to establish a Board to ensure these purposes. The purpose behind Section 133(1)(b) of the Code in so far as it relates to water is also the same... The Act is a special Statute, while the provisions in Section 133 are of general nature. In regard to pollution of water by way of effluents, the Act is a complete Code in itself and if these two provisions are to co-exist, that would be causing inconvenience, if not a conflict.... The provisions of the Act by implication, repeal the provisions of Section 133 of the Code.

(emphasis supplied)

The State Prosecutor, counsel for the Pollution Control Board, and even the counsel for Petitioners who relied on the decision initially, submit that the decision does not lay down, the correct law. According to the State Prosecutor the enunciation of law in Tata Tea case 1984 KLT 645 would defeat important provisions of Chapter X of the Code of Criminal Procedure, designed for maintenance of ''public order and tranquillity''. He would also say that a person aggrieved by an act of nuisance, would be left without remedy because, only the Pollution Control Board can file a complaint under the Pollution Control Act. The object of the two legislations are entirely different, and concepts of repugnancy or repeal are alien to the context, according to the State Prosecutor. He adds that the Pollution Control Act has nothing to do with the maintenance of public order and tranquillity.

Repeal, like enactment, is essentially a legislative exercise, properly left with the legislature, in the separation of powers, envisioned by the Constitution of India. It is for the legislature to enact a law, or repeal a law. Six modes of repeal are noticed by Craies. Where a law ceases to be in force, where it expires, where it is spent, when it is repealed in general terms, or when it is superseded, or when it becomes obsolete, there is repeal. Implied repeal is not presumed easily, because the legislature which enacts a law, is presumed to be aware of the existence of earlier laws on the subject. Craies on "Statute Law" states:

repeal is a power of the legislature, and it should remain where it belongs. Any other view will be hazardous and may well be said to be an encroachment on the legislative field. In an extreme and clear case, an antiquated law may be treated as repealed by implication. The legislature is the Judge of the situation and Courts are not expected to undertake that duty, unless it becomes unavoidable or the circumstances are so apparent as to lead to one and only one conclusion.

(emphasis supplied)

A similar view was expressed by Crawford-Statutory Construction-Page 638:

Laws are presumed to be passed with full deliberation and with full knowledge of all existing laws on the same subject. It is but reasonable, to conclude that the legislature in passing a Statute, did not intend to interfere with or abrogate any former law relating to the same matter, unless repugnancy between tire two is irreconcilable.

(emphasis supplied)

Traditionally, repeal by implication did not find favour with Courts. For three centuries and more, that has been the view. In Dr. Foster''s case (1640) 11 Rep. 56 Lord Coke said:

Acts of Parliament are established with such gravity and wisdom and universal consent of the whole realm, foe the advancement of the Commonwealth, that they ought not by any constrained construction be abrogated.

(emphasis supplied)

This view was reiterated in Charlton v. Tonge Overseer (1871) L.R. (7) C.P. 178. A long line of judicial, pronouncements have sanctified the traditional view.

In Ex parte McLean (1930) 43 C.L.R. 472 Dixon, J. observed:

Inconsistency does not lie in the mere coexistence of two laws, which are susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal Statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.

In O''Sullivan v. Noarlunga Meat Ltd. 1957 A.C. 1 the Judicial Committee of the Privy Council affirmed the rule in Ex parte McLean. In AIR 1939 74 (Federal Court) , the Federal Court stated that:

there is a presumption of validity and every effort should be made to reconcile them and construe both so as to avoid their being repugnant to each other....

In Municipal Council Palai Vs. T.J. Joseph and Others, , the Supreme Court observed that a general statute applies to all persons, while a special statute is confined in its operation to particular persons. The Court reminded that:

there is a well settled presumption against implied repeal.

(emphasis supplied)

In Seth Nand Lal and Another Vs. State of Haryana and Others, , the Court reaffirmed that:

In a forensic situation where two laws exist on the same subject, Court should discern the intention of the legislature and interpret the law to make it effective and not to frustrate legislative intention.

(emphasis supplied)

Plurality of legislation does not suggest, repeal by implication. Often, conflict between two Statutes is only seeming; their objects being different, and the language of each being restricted to its object. In the words of Maxwell, they can ''run on parallel lines, without meeting''. Even where there is seeming conflict, if possible, effect should be given to both see Sri Venkitarama Deveru v. State of Mysore 1958 C.S.R. 895. The same is the statement of law in Municipal Corporation of Delhi Vs. Shiv Shanker, , M. Karunanidhi Vs. Union of India and Another, , etc.

In the light of these principles of vintage, we shall examine the correctness, of the statement of law in Tata Tea case 1984 KLT 645. The learned Judge found implied repeal because:

If the two provisions are to co-exist, that would cause inconvenience, if not conflict.

With great respect, we are unable to agree. It is not known how, or to whom inconvenience would be caused. At any rate, inconvenience is no ground to abrogate a law "passed with such gravity and wisdom", and "passed with full deliberation and knowledge of existing laws". Again, co-existence is no vice, for ''inconsistency does not lie in co-existence''. As for conflict, none exists and none has been pointed out by the learned Judge. We would remind ourselves that, if there is a presumption, it is ''a presumption of validity and every effort should be made to reconcile'' the laws.

There is well settled presumption against implied repeal,

( Municipal Council Palai Vs. T.J. Joseph and Others, )

(emphasis supplied)

and the Court should interpret law,

to make it effective and not frustrate legislative intention.

(emphasis supplied)

( Seth Nand Lal and Another Vs. State of Haryana and Others, )

We are afraid that the learned Judge made a presumption to the contrary, defeating the legislative purpose. Again, the learned Judge said that Section 133 of the Code "takes in pollution of water" and found conflict between the Code and the Pollution Act, on that assumption. The Code does not deal with pollution. Chapter X of the Code deals with "maintenance of public order and tranquillity", which is a basic regal function. There is no inconsistency whatever. Both laws operate in different spheres, and both are susceptible of simultaneous obedience. In our view, the learned Judge applied the maxim ''Generalious specialia non derogant'' in the wrong context. The special law overrides the general law, if they operate in the same field and if they are irreconcilable. We find it difficult to think that the Pollution Control Act and the Code of Criminal Procedure, are ''special'' and ''general laws''. One deals with pollution and the other with maintenance of law and order. The Pollution Control Act, which repeals the Code according to the learned Judge, has nothing whatever to do with maintenance of law and order.

The learned Judge found further that an aggrieved person can ''approach the State Board with his grievance''. He cannot; and the Board has no power to grant redress. It is pertinent to notice that the Board itself is in the position of a complainant, which has to seek redress elsewhere. The learned Judge added:

Remedies which could be provided by the Magistrate could be provided by the authorities.

We find no provision in the Pollution Control Act, to warrant such an inference. On the contrary, provisions of the Act indicate that the board itself has to seek remedies from a Magistrate (Section 33). If the view of the learned Judge is to prevail, the aggrieved will be deprived of his remedy under the Code and left with none.

In our view, the two Acts operate in different areas, deal with different subjects and have different objects, and do not come into conflict with each other. They are amenable to simultaneous obedience, and there is nothing irreconcilable in them. That was the view taken by the Andhra Pradesh High Court in M/s Nagarjuna Paper Mills Ltd. v. S.D.M. and R.D. Officer, Sangareddy 1987 Cri. L.J. 2071, where the identical question arose. We are fortified in our view by decisions of the Supreme Court. To cite one case, in Municipal Corporation of Delhi Vs. Shiv Shanker, , the Court examined whether there was implied repeal of the Food Adulteration Act, by the enactment of Essential Commodities Act. The Apex Court pointed out that several statutory provisions may run on parallel lines, without repugnancy, and that repugnancy or inconsistency should be found only if the enactments are such that one cannot be obeyed, without violating the other. If the two are capable of simultaneous obedience, there is no repugnancy. The object arid purpose of the Food Adulteration Act was to eliminate danger to human life, while the object of the Essential Commodities Act was to control production, supply, distribution and trade of essential commodities. Hence:

the two provisions may have within narrow limits, co-terminus fields of operation. We have to see if the two provisions can stand together...They can stand together if the powers are intended to be exercised for different purposes.

The principles laid down in Municipal Corporation of Delhi Vs. Shiv Shanker, , govern the case on hand, and the facts therein offer a parallel. With great respect to the learned Single Judge, we hold that the Tata Tea case 1984 KLT 645 does not lay down the law correctly.

Then remains the question whether the Magistrate was right in his conclusions on facts. The Magistrate has not considered the case of Petitioners, that flow of water was obstructed by acts of M/s Gopalakrishnan Nair, Sulochanan Nair, Thankappan, Latheef and Ors. . The Magistrate must consider this, with notice to persons against whom such allegations are made. He will consider rival contentions of parties and pass appropriate orders. For that purpose, the impugned order is set aside and the case is remitted to the Court below. The decision in Tata Tea Ltd. v. State of Kerala 1984 KLT 645, is overruled, as it does not lay down the correct law.

The Criminal Miscellaneous Case is allowed.