IMPORTANT POINT
Provisions of Section 133 Cr.P.C. cannot be said repealed by implication by provisions of Water (Prevention and Control of Pollution) Act and Air (Prevention and Control of Pollution) Act.

Headnote:(i) Interpretation of Statute-Presumption against a repeal by implication-Repeal by necessary implication is inferred when provisions of later Act are so inconsistent with or repugnant to the provisions of earlier Act and that two cannot stand together.
       Held : 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 provision, 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 (AIR 1963 SC 1561), Northern India Caterers (Private) Ltd. and Anr. v. State of Punjab and Anr. (AIR 1967 SC 1581), Municipal Corporation of Delhi v. Shiv Shanker (1971 (1) SCC 442) and Ratan Lal Adukia and Anr. v. Union of India (AIR 1990 SC 104). 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 exclusio 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. (AIR 1992 SC 81). 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.) (1995(4) SCC 718), and Shri A.B. Krishna & Ors. v. The State of Karnataka & Ors. (JT 1998(1) SC 613). 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 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." (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re: Berrey (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. (Paras 11 to 13)
       (ii) Criminal Procedure Code, 1973 -Section 133-Water (Prevention and Control of Pollution) Act, 1974-Air (Prevention and Control of Pollution) Act, 1981-Public nuisance-Maintenance of public order and tranquility-Order passed by SDM u/s 133 Cr.P.C. directing respondent to close their industries on allegations that serious pollution was created by discharge of effluent-High Court quashed proceedings holding provisions of Pollution Control Acts impliedly repealed provisions of Section 133 Cr.P.C.-View of High Court was not correct-Area of operation in code and pollution laws in question was different with different aims and objects-Both operated in their respective fields and there was no impediment for their existence side by side.
       Held : 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. 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. (Paras 13 & 14)

JUDGMENT

Arijit Pasayat, J.-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 statutes 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 aspe

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2003 Supreme(SC) 777

IMPORTANT POINTProvisions of Section 133 Cr.P.C. cannot be said repealed by implication by provisions of Water (Prevention and Control of Pollution) Act and Air (Prevention and Control of Pollution) Act.

Cases Referred (8)

IMPORTANT POINT
Provisions of Section 133 Cr.P.C. cannot be said repealed by implication by provisions of Water (Prevention and Control of Pollution) Act and Air (Prevention and Control of Pollution) Act.