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High Court Of Rajasthan
Judgename : B.R.ARORA,A.K.SINGH
MAHARAJA SHRI UMAID MILLS LIMITED, PALI - Appellant
Versus
STATE OF RAJASTHAN - Respondent
CIV. WRIT PETITION 1335 Of 1986
Decided On : 07/02/1997
WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 - SECTION 33 - SECTION 362 OF THE CODE OF CRIMINAL PROCEDURE - CRIMINAL PROCEEDINGS - RESTORATION OF DISMISSED APPLICATION - JURISDICTION OF MAGISTRATE - REVIEW OF JUDICIAL ORDER - INHERENT POWERS OF MAGISTRATE - SECOND COMPLAINT - LIMITATION - INTERPRETATION OF STATUTORY PROVISIONS - APPLICABILITY OF ORDER 9, C. P. C. - PROCEDURE FOR ADJUDICATION OF INJUNCTION APPLICATION - DISTINCTION BETWEEN CIVIL AND CRIMINAL PROCEEDINGS - PUBLIC NUISANCE - PREVENTION OF WATER POLLUTION - ENVIRONMENTAL LAW - DETERRENT THEORY OF CRIMINAL JUSTICE ADMINISTRATION - CRIMINAL PROSECUTION AND CONVICTION FOR NON-COMPLIANCE OF INJUNCTION - JUDICIAL REVIEW OF MAGISTRATE'S ORDER - WRIT PETITION - QUASHING OF ORDER - COSTS.
Fact of the Case:
Petitioners, a textile mill and its employees, were accused of discharging untreated industrial effluent into the Bandi river, causing pollution. The Water Pollution Board filed an application under Section 33 of the Water (Prevention and Control of Pollution) Act, 1974, seeking an injunction to restrain the petitioners from causing such pollution. The application was initially dismissed due to the complainant's absence, but later restored by the Chief Judicial Magistrate. The petitioners challenged this order, arguing that the proceedings were criminal in nature and the Magistrate lacked jurisdiction to restore the application.
Finding of the Court:
The Court held that the proceedings under Section 33 of the Act were criminal in nature and akin to Section 133 of the Code of Criminal Procedure, intended to prevent public nuisance and pollution of water resources. The Magistrate erred in adopting the procedure for injunction applications under Order 39, Rules 1 and 2, C. P. C. The dismissal of the application for non-appearance of the complainant was a final judicial order, and the Magistrate had no inherent powers to review or recall it. The order restoring the application was, therefore, without jurisdiction and was quashed.
Issues: 1. Whether the proceedings under Section 33 of the Water (Prevention and Control of Pollution) Act, 1974 are criminal or civil in nature? 2. Whether a Magistrate has jurisdiction to restore an application under Section 33 of the Act that was dismissed due to the complainant's absence? 3. Whether the Magistrate can review or recall a judicial order passed by him/her? 4. Whether a second complaint can be filed after the dismissal of an earlier complaint on the same grounds?
Ratio Decidendi: 1. The Court held that the proceedings under Section 33 of the Act are criminal in nature, as they are intended to prevent public nuisance and pollution of water resources, and non-compliance with the injunction issued under Section 33 entails criminal prosecution and conviction. 2. The Court held that a Magistrate does not have jurisdiction to restore an application under Section 33 of the Act that was dismissed due to the complainant's absence, as there is no provision in the Code of Criminal Procedure empowering the Magistrate to review or recall a judicial order passed by him/her. 3. The Court held that a Magistrate has no inherent powers to review or recall a judicial order passed by him/her, and the dismissal of an application under Section 33 of the Act for non-appearance of the complainant is a final judicial order. 4. The Court held that a second complaint can be filed after the dismissal of an earlier complaint on the same grounds, provided it falls within the limitation prescribed.
Final Decision: The Court allowed the writ petition filed by the petitioners, quashed the order passed by the Chief Judicial Magistrate restoring the application under Section 33 of the Act, and directed the parties to bear their own costs.
B. R. ARORA, J.
( 1 ) PETITIONER No. 1 is a Public Limited Company which runs a textile mill at Pali Marwar. Petitioner Nos. 2 and 3 were its employees responsible for the management of the mill. The industrial effluent of the mill was being discharged in the Bandi river. On 11-5-84, the Water Pollution Board filed an application under Section 33 of the Water (Prevention and Control of Pollution) Act, 1974 in the Court of the Chief Judicial Magistrate, Pali against the petitioners expressing its grave apprehension that by reason of untreated disposal of sewerage and trade effluent which contain noxious poison and pollutting matter being discharged by the company in the Bandi river, it is likely to pollute the stream and wells in the area. It was, also, stated in the complaint that the company is discharging the trade/industrial effluent which contain sodium sulphate and other poisonous elements in the Bandi river without treating the industrial effluent and is, thus, contravening the provisions of Sections 24, 25 and 26 of the Act and by this discharge of effluent the problem of pollution of the water in the Bandi river, wells and the undergound water has been created. It was, therefore, prayed that the respondents (petitioners) may be restrained from causing such pollution by discharging the trade effluent without proper treatment.
( 2 ) THE application was registered as a Criminal Miscellaneous case. After registration of the application, notices were issued to the petitioners. An objection regarding the procedure to be followed for the adjudication was raised by the respondent-petitioners and the learned Chief Judicial Magistrate, by his order dated 23-8-84 held that since it is an injunction matter, the procedure prescribed under Order 39, Rules 1 and 2, C. P. C. for the disposal of injunction application will be followed and the matter will be decided on the basis of the affidavit and documents filed by the parties. The case was fixed before the learned Chief Judicial Magistrate on 23-11-84. Nobody appeared on behalf of the complainant on that day and, therefore, the application filed by the Water Pollution Board was dismissed. The Board thereafter, on 7-12-84, filed an application for setting aside the order dated 23-11-84 and for restoration of the application. The Chief Judicial Magistrate, by his order dated 26-3-86 allowed the application filed by the Water Pollution Board and set aside the order dated 23-11-84 and restored the application to its original number. While restor-ing the application, the learned Chief Judicial Magistrate held that since the procedure, which was applicble to the trial of injunction application provided under Order 39, Rules 1 and 2, C. P. C. , was adopted, therefore, the provisions of Order 9, C. P. C. for the restoration of the case and setting aside the ex parte order are applicable. Relying upon the provisions of Order 9, C. P. C. , the learned Magistrate ordered for the restoration of the application. It is against this order that the petitioners have filed the present writ petition.
( 3 ) IT is contended by the learned Counsel for the petitioners that the proceedings under Section 33 of the Act are criminal in nature and when once the complaint filed by the Water Pollution Board was dismissed on 23-11-84 as nobody appeared on behalf of the complainant, the complaint cannot be restored as there are no powers under the Code of Criminal Procedure vested in the Magistrate to review its own order and a second complaint has already been filed against the petitioners by the complainant, on 10-12-84, for the offences under Sections 24, 25 and 26 of the Act. The order dated 22-3-86, (sic), thus, passed by the learned Chief Judicial Magistrate restoring the application is, therefore, wholly without jurisdiction.
( 4 ) LEARNED Counsel for the respondents, on the other hand, has supported the order passed by the learned trial Court.
( 5 ) WE have considered the submissions made by t
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