Maharaja Shri Umaid Mills Limited, Pali and ors. Vs. State of Rajasthan and ors. - Court Judgment

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 wasbeing 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 undcrgound 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 restoring the application, the learned Chief Judicial Magistrate held that since the procedure, whichwas 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 eomplaint cannot he 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 the learned Counsel for the parties.

6. The key questions for adjudication in this writ petition are : (i) what is ihe nature of the proceedings under Section 33 of the Act; and (ii) whether the learned Chief Judicial Magistrate had jurisdiction to revive and restore the application under Section 33 of the Act?

7. Section 33 of the Act empowers the Board to make an application to the Court for restraining the apprehended pollution of water in the stream or well and for restraining the person/industrial concern from causing such pollution. The pollution is a health-hazard and the law prohibiting pollution admits pollution as an evil. Section 33 of the Act is analogous to and pari materia with Section 133 of the Code of Criminal Procedure and serve the same problems. Both these provisions, though in different legislations, are intended to curb the evil of public nuisance. Both provide apreventive measures and functions side by side. Section 33 is a social piece oflegislation and provides a remedial measure and makes a provision for preventive action being taken where there is an apprehension that the water in any stream or well is likely to be polluted on account of disposal or likely disposal of trade effluent in such stream or well. The proceedings under Section 33 can be instituted in the Court of Metropolitan Magistrate or a Judicial Magistrate (First Class) and after being satisfied the Magistrate can make any order as he deems fit, restraining the person concerned from polluting the water in any stream or well. Sub-section (2) of Section 41 provides that whoever fails to comply with any direction issued by the Board under Sub-section (2) of Section 33 in respect of each such failure and on conviction, which is punishable with an imprisonment for a term which shall not be less than one year and six months but which may extend to six years and a fine and in case the failure is continuous, with an additional fine which may extend to Rs. 5000/-for every day during which such failure continued after the conviction for his first such failure. Subsection (3) of Section 41 further provides that if the failure referred to in Sub-section (2) continues beyond a period of one year alter the date of conviction, the offender shall, on conviction, be punished for an imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine.

8. Section 58 of the Act excludes the jurisdiction of a Civil Court to entertain the civil suit in the matters covered by the Act, to be conducted by the Magistrate.

9. Our environmental law operates on a deterrent theory of Criminal Justice Administration. The Act was enacted with the purpose for the prevention and control of water pollution and maintaining and restoring of wholesomeness of the water. Major sources of pollution of our water resources are the industrial and community wastage which cause threat to the water courses rendering them unfit for human use less than the drinking water sources. By releasing the industrial effluent the petitioners have failed to implement the law for controlling the water pollution. Water is the most important of the elements of the nature and the trade effluent discharged from the industries, cause harm to the natural water in the stream and well. No country can afford the measures for the control of thewater pollution. It is with this view that Section 33 of the Act has been enacted. The proceedings under Section 33 of the Act are intended to check the public nuisance of water pollution and these provisions are akin and analogous to Section 133, Cr. P.C. and are maintainable in the Court of a Metropolitan Magistrate or a Judicial Magistrate (First Class). The Section intends to arrest the damage and repair it and to take preventive measures to check the pollution of our water resources. The non-compliance of the injunction issued under Section 33 entails the criminal prosecution and conviction. The proceedings are, thus, criminal in nature and the application is to be decided as a criminal case. The learned Magistrate was, therefore, not right in adopting the procedure for the adjudication of the application which is applicable to the injunction application under Order 39, Rules 1 and 2, C. P.C.

10. The next question which requires consideration is : whether the learned Chief Judicial Magistrate was right in allowing the application for restoration and setting aside the order dated 23-11-84 by which the application was dismissed as nobody appeared on behalf of the complainant?

11. The proceedings under Section 33 of the Act are in the nature of criminal proceedings. The learned Magistrate, by his order dated 23-11-84 dismissed the application filed by the Water Pollution Board. Section 362 of the Code of Criminal Procedure nowhere authorises the Court to alter or review the judgment or the final order when once the judgment or the final order disposing of the case has been passed except to correct a clerical or arithmetical error. Review is the creation of the Statute. There is no provision in the Code of Criminal Procedure empowering the Magistrate to review or recall a judicial order passed by him, though he can entertain the second complaint on the same ground on which the earlier application was dismissed on account of non-presence of the complainant, if a case for that is made out.

12. In Major General A. S. Gauraya v. S. N. Thakur, AIR 1986 SC 1440: (1986 Cri LJ 1074), the question before the Supreme Court was : whether a Magistrate, who discharged the case on the ground that the complainant did not appear and dismissed the complaint, can restorethe complaint by revoking his earlier order. After discussing the law on the point, the Apex Court held (at page 1442 of AIR) :-

'The order of dismissal of a complaint by a Criminal Court due to the absence of a complainant is a proper order. But the question remains whether a Magistrate can restore a complaint to his file by revoking his earlier order dismissing it for the non-appearance of the complainant and proceed with it when an application is made by the complainant or review it. A second complaint is permissible in law if it could be brought within the limitations imposed by this Court in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar, 1962 Suppl (2) SCR 297 : AIR 1962 SC 876 : (1962 (1) Cri LJ 770). Filing of a second complaint is not the same thing as reviving a dismissed complaint after recalling the earlier order of dismissal. The Criminal P.C. does not contain any provision enabling the Criminal Court to exercise such an inherent power.'

13. The same view was reiterated by the Supreme Court in Mostt. Simrikhia v. Smt. Dolly Mukherjee alias Chhabi Mukherjee, 1990 Cri LJ 1599 : (AIR 1990 SC 1605) by holding that (at page 1606 of AIR):-

'If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same material to arrive at different conclusion is in effect are view, which is expressly barred under Section 362.'

14. The learned Magistrate has no inheren! powers. Dismissal of the application under Section 33 of the Act filed by the Water Pollution Board for the non-appearance of the complainant is a judicial order which is a final one so far as that Court is concerned. Recall of a case disposed of by the Magistrate by a judicial order is notpermissible under the Code of Criminal Procedure. So far as the accused are concerned, dismissal of the complaint for non-appearance of the complainant is a final order and after passing that order the Magistrate becomes functus officio and had no power to review or recall that order on any of the ground whatsoever because no review petition can be entertained as there is no provision in the Code of Criminal Procedure enabling the Criminal Court to review its order. There is no bar for filing the second complaint though there are certain limitations to it. The complainant, if so likes, can file a second complaint provided it falls within the limitation prescribed. But since there is no provision under the Code of Criminal Procedure empowring the Magistrate to review or recall the judicial order passed by him and, therefore, the order passed by the learned Magistrate recalling/setting aside the order dated 23-11-84 and restoring the application, was wholly without jurisdiction. The order passed by the learned Chief Judicial Magistrate, therefore, deserves to be quashed and set aside.

15. In the result, the writ petition filed by the petitioners is allowed. The order dated 23-3-86 (sic) passed by the learned Chief Judicial Magistrate, Pali, recalling the order dated 23-11 -84 and restoring the application under Section 33 of the Act, is quashed and set aside. In the facts and circumstances of the case, we leave the parties to bear their own costs.