DR. MUNIR AHMAD MUGHAL, J.-- Through this Constitutional petition the petitioners seek a declaration that the impugned orders dated 16.5.2000 and 10.11.1998 be quashed and the same be declared to have been passed clearly without jurisdiction, without lawful authority and of no legal effect.
2. Facts of the case forming background of the instant petition are that on a photo-stat copy of application jointly signed by Rao Abdul Latif and Ghulam Rasool, which contains the signatures and thumb marks of as many as 65 persons but signed by one person with the same handwriting and thumb marked by the same person, claiming themselves to be residents of Tariq bin Ziyad Colony Sahiwal, the Deputy Commissioner, Sahiwal passed an order in the name of Assistant Commissioner, Sahiwal to take legal action as the matter has already been discussed with him.
The Assistant Commissioner on. 6.6.1998 directed the Area Magistrate, respondent No. 2 to issue the precess whereupon the, learned respondent No. 2 on 8.6.1998 issued notices to the parties for 11.6.1998 for abatement of nuisance in purported exercise of his power under Section 133, Cr.P.C. And petitioners in their written reply dated 6.7.1998 came out with the plea that they are running business in the name and style of Latif Tanneries which is a private limited company and in any case they are running their business under a licence issued by the Municipal Committee, Sahiwal. It was further maintained that the Crown land was obtained way back on 28.3.1933 vide conveyance deed for The purpose of running leather .Factory. Item No. 4 of the conveyance deed is reproduced hereunder:-- "The vendee shall, within six months from the date of this indenture commence to build combined a residential house a factory (Leather) menials quarters on the said land the plans of which shall be approved by the Municipal Committee Montgomery." and the right from the date of purchasing of the crown land the business of tanning was set up.
Primarily it was started by Sh. Siraj din and present petitioners are successors of Sh. Siraj Din and that way back in the year 1958 the Municipal Committee Montgomery served Latif Tanneries with a notice under Section 123 of the Municipal Act on the precise allegation that the factory was causing nuisance and created polluted atmosphere. The notices served upon Latif Tanneries-petitioners were challenged through civil suit which was decreed on 30.7.1960 vide judgment and decree with the objection that the action of the committee was based on 'mala fide and instead of taking punitive action remedial measures ought to have been taken, as provided by law. The judgment and decree dated 30.7.1960 passed by the learned Trial Judge, Sahiwal attained finality as it was not challenged anywhere either by the municipality or by anyone else and that just to defeat the efficacy of the judgment and decree passed by the Civil Court of competent jurisdiction, the two persons, namely, Capt. (R) Rao Abdul Latif and Ghulam Rasool joined hands and moved a frivolous application before the respondent No. 2 who recorded evidence of as many as 14 witnesses and also recorded 5 witnesses on behalf of the petitioners and that petitioners in evidence tendered copy of Jamabandi (Ex.D. 1) and Licence Fee paid to the Municipal Committee (Ex.D. 2 to D. 12) and that the learned Executive Magistrate 1st Class-respondent No 2 vide his order dated 10.11.1998 directed that the leather factory shall be shifted till 10.3.1999 and that the order dated 10.11.1998 passed by the learned respondent No 2 was challenged in revision vide, memo. Of revision dated 1.12.1998 before the learned respondent No. 1 who vide his impugned order dated 16.5.2000 has been, pleased to dismiss the revision petition with the observation that the leather factory was indeed causing nuisance to the applicants and that the petitioners who are aggrieved of the impugned order dated 16.5.2000 passed by the learned respondent No. 1 and that - of dated 10.11.1998 of the learned respondent No. 2 have been left with no other adequate, efficacious and speedy remedy except to invoke the Constitutional jurisdiction. Of this Court and prefer this petition.
3 Learned counsel for the petitioners submitted that Latif Tanneries is a private limited company registered under the Companies Act, 1913 and the impugned action taken in purported exercise of section 133,,Cr.P.C. For all purposes is a civil wrong and the application for removal of abatement was only competent against the company and not against the petitioners, therefore, the whole proceedings conducted by learned respondents Nos. 1 and 2 from inception to tail are coram non judice and without lawful authority and the same are liable to be declared as such by this Hon'ble Court and that Latif Tanneries being private limited company registered under Companies Act is entitled to sue and be sued through its managing partner Muhammad Saeed and application against the petitioners in their private capacity in any case was not competent and that the evidence brought on the record, clearly demonstrates that the tanning factory is working at the site since 1933 and the site in dispute being Crown land was sold by the Government for the purposes of establishment of tanning factory and that petitioners are running their business under a licencing system which for all purposes is valid under Article 18 of the Constitution and no proceedings under Section 133, Cr.P.C. Could be taken for removal of the factory and that this fact has been established on the record and the evidence in particular of Sh.
Abdul Latif can very well show that amount of Rs. 30 million has been spent on this factory with a pious purpose for the advancement of industrial development. It is further established that so many families were feeding themselves on account of the business being run in the factory. The impugned exercise has been taken for the benefit of two persons only which cannot be termed as a public nuisance and that the main hub of the case of the two applicants disclosed in the miscellaneous application addressed to the Deputy Commissioner is that offensive smell was coming out of the factory. Be that as it may, the offensive smell can be controlled and reduced especially when there are modern devices available in these days. The existence of factory could not be held to be dangerous to the human life and that the internal inspection if not satisfactory the Factories Act has provided an adequate remedy that necessary instructions could be imparted and adequate measures could be taken to clean-the situation if found obnoxious. The learned Magistrate instead of directing take sanitary measures has directed the removal of factory which is clearly beyond his jurisdiction and that under Section 10 of the Factories Act, 1934 the District Magistrate shall be the Inspector for his district, The bare perusal of section 10 shows that the District Magistrate shall be ex-officio Inspector of his district but the Provincial Government may appoint additional Inspectors and allocate area of their respective jurisdiction for the purpose of this section. The position, therefore, which emerges from sub-section (4) of Section 10 of the Factories Act, 1934 is that the District Magistrate could only initiate action in his capacity as Inspector of the district and proceedings under Section 133, Cr.P.C. In the circumstances of the case were uncalled for and that similarly section 14 of the Factories Act, 1934 has taken a due care to keep the atmosphere free from pollution. Section 14 ibid in terms provides that effective measures shall be taken in every factory for the disposal of wastes and effluents due to the manufacturing process carried on therein. In the case in hand adequate measures had already been taken for the flow of waste and effluent and on account of modern machinery installed in the factory the question of obnoxious smell does not arise and that in both the judgments rendered by the learned Courts below there are no findings returned to the effect that existence of the factory is dangerous to the human life. Before conducting the enquiry which on its face value is Iacunic and perfunctory exercise the alleged expert whose evidence he believed to be correct neither visited the factory in presence of the petitioners nor undertook an exercise to reach at the conclusion that the waste of the hid material was lying inside the factory which was dangerous to the human life. It there was an finding to that effect that is untruthful and carries no value. Learned counsel further submitted that the - main hub of the case .Of the complainants as disclosed in the miscellaneous application is that smell was obnoxious. During the course of evidence not a single instance has been quoted or brought on the record that for the last many years the was any instance of epidemic having burst in the area and that the doctor who appeared in the witness-box did not utter even a single word in this respect and that in absence of any evidence the learned Inquiry 'Magistrate could not reach at the conclusion that the factory was creating bad atmosphere injurious to human life. It the conclusion of the Magistrate 'on its face value is accepted to be true the municipal committee itself built up a filth depot in that area and that in any case the learned Inquiry Magistrate could direct the petitioners to ab ,te the nuisance, if any, and there is no lawful authority or jurisdiction available with him by which he could direct that factory may be shifted at all and that in the earlier round of litigation when the learned civil Court recorded a finding of fact that the factory was not creating any bad atmosphere recorded a finding on the offer made by the counsel representing the case of the petitioners that if at all the municipality is richly interested in removing the factory the alternate place may be granted to the petitioners for running the business alongwith the shifting charges.. The judgment dated 30.7.1960 is still holding the field and has not been upset either by the Court of appeal or by the Revisional Court. Learned counsel further submitted that Article 18 of the Constitution in terms provides that subject to such qualification if any as may be prescribed by law every citizen shall have the inalienable right to enter upon any lawful trade or profession and that petitioners purchased the Crown land from the Government and were running the lawful profession under a valid licence granted by the municipal committee and the Government of the Punjab, therefore, the learned respondent No. 2 in exercise of his magisterial jurisdiction could not set the provisions of Article 18 of the Constitution at naught and the impugned orders of the learned Courts below are wholly without jurisdiction and without lawful authority and that the impugned orders on the other score are also discriminatory in nature. There are more than 100 factories of alike nature which are running their business in thickly populated' areas. The learned respondent No. 2 for the first time placed a new interpretation of sections 133 and 137, Cr.P.C. That in case of a wrong to the private individual the whole business concern should be uprooted and that once the issue has been conclusively decided by the Civil Court of competent jurisdiction the device under Section 133, Cr.P.C. Could not be adopted. The decree of the civil Court will command the jurisdiction of the Criminal Court and in any case learned respondents Nos. .1 and 2 could not sit upon the Civil Court's decree passed in favour of the petitioners, still holding the field and that at the most the case of, the complainants disclosed in the miscellaneous application was of a public nuisance and the suit under Section 91, C.P.C. Could only be instituted with the permission of the Advocate General and the criminal law in any case could not be set in motion and that both the learned Courts below totally misread and misinterpreted and twisted the evidence on record to the advantage of two private respondents which has resulted in grave miscarriage of justice and that without prejudice to the above grounds it is submitted that no power to take action in respect of alleged nuisance qua the property in dispute in the Federal Agency in terms of Section 2 (xvi) of the Pakistan Environmental Act, 1997 (Act No. XXXIV of 1997). This Act is a complete code for, inter a/ia, prevention/elimination of any population amounting to public nuisance as visualized by Section 133, Cr.P.C. This Act being special statute overrides the provisions of general statute i.e. Code of Criminal Procedure in respect of the matters covered by it. Section 133 Cr.P.C. By implication stands repealed and the impugned orders, therefore, could not be legally passed by the learned respondents Nos. 1 and 2 and the same are liable to be declared as without lawful authority and that the learned Additional Sessions Judge vide his impugned order dated 11.5.2000 directed not only to stop the working of the factory but also the removal of .The superstructure is not available with the learned revisional Court and in doing so it altogether set up a new case to the advantage of the complainant which even otherwise is not borne out of the order dated 10.11.1998 passed by the learned Inquiry. Magistrate.
The learned Additional Sessions Judge overstepped the limits of his jurisdiction while passing the impugned order which renders the same to be clearly without jurisdiction and without lawful authority. '
4. Notice was issued to the respondents. Since the matter was of public importance, the respondent No.- 2 was directed to obtain the opinion of the Environmental Protection Agency, Government of the Punjab, Lahore, which was obtained and placed on record and were as under:-- "Usually the pollution parameters Biochemical Oxygen Demand, Chemical Oxygen Demand, Total Dissolved Solids, Total Suspended Solids, Chlorides, Sulphides and Chromium are very high, with all their hazards in untreated waste water from a tanning unit.
Although a vegetable tanning unit does not have chroMium in its waste water yet all other polluting chemicals/materials are present there.
The pollution of tannery effluents (waste water) can be controlled by its treatment in a property designed "Effluents Treatment Plant" to bring its pollution parameters within permissible level as defined by "National Environmental Quality Standards".
The solid waste from a vegetable tanning unit is to be disposed of far from the populated areas to protect the citizens from its injurious gases and obnoxious smell. While in case of a chromium tanning unit an additional precaution is also required to protect the ground water from chromium contamination by the leachate of the solid waste.
Normally the control of air pollution (injuries gases as well as intolerable odour) of a tanning unit is considered to be uncontrollable economically. It is why the leather tanning units are often made or shifted far from the residential areas outside the municipal limits. Any how, technically speaking, the nuisance of injurious gasses and obnoxious smell can be reduced (not eliminated) by confining the materials and the processes in closed and covered places and their forced ventilation through a high chimney.
(1) Construction and Operation of a well-designed and efficient "Effluents Treatment Plant" to bring all the pollution parameters within permissible levels as defined in the "National Environmental Quality Standards".
(2) Timely removal of the solid waste from the site and its disposal at. Appropriate Place for from the populated areas.
(3) Forced draft ventilation of whole of the processing area (making the area close) through a chimney at least 80 feet high.
OR Shifting of the unit to another appropriate place".
5. The most important question to be decided in this case is as to whether section 133, Cr.P.C.
Comes within the mischief of implied repeal in the peculiarly circumstances of this case. The answer is in affirmative for the reasons that Earl T. Crawford in his book "The Construction of Statutes" at page 196 in paragraph 137 as dealt with "Implied Repeals, Generally". He says:- "Repeals of this type are those which take place when a subsequently enacted law contains provisions contrary to those of an existing law but no provisions expressly repealing them. Such repeals have been divided into two general classes; those which occur where an act is so inconsistent or irreconcilable with an' existing prior act that only one of the two can remain in force, and those which occur when an act covers the whole subject of an earlier act and is intended to be a substitute therefor. As has been suggested, a repeal takes place under these circumstances, even though the now act contains no repealing clause, and in face of the fact that'the may be a Constitutional provision prohibiting the repeal of any law simply by reference to its title or section number. The validity of such a repeal is sustained on the ground that the last expression of the legislative will should precail. Technically, there is perhaps a violation of the Constitutional provision but from a 'practical stand-point the circumvention can be easily justified".
1995 CLC 369) Lahore, a Division Bench of this Court observed that subsequent legislation on the same subject would, by necessary implication, repeal the earlier law to the extent of mutual inconsistency or repugnancy.
Similarly, in the case of Rehmani Gui Vs. Rent Controller and others (1987 SCM R 866) it was observed:- "it is well-settled that a special law shall prevail ever subsequent laws of general nature. This principle is enshrined in the Maxim "generalia specialibus non derogant".. This Maxim has been explained by Maxwell in his book on Interpretation of Statues in the following words:-- "It is but a particular application of the general presumption against an intention to alter the law beyond the immediate scope of the statute to say that the general Act is to be constructed as not repealing a particular one, that is, one directed towards as special object or a special class of objects. A general later law does not abrogate an earlier special one by mere implications.
Craise has explained this rule in his book "On Statute Law". It reads as follows:-- "The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said riot to apply it the prior enactment is< a special and subsequent enactment is general, the rule of law being, as stated by Lord Salborne in Seward Vs. Wera Cruz, 'that where there are general words in a latter Act capable of reasonable and sensible application without extending them to subjects specialty dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general word, without any indication or a particular intention to do so. There is a well- known rule which has application to this case, which is that a subsequent general Act does not affect the prior special Act by implication. That this is the law cannot be doubted and the cases on the subject will be found collected in the Third Edition of Maxwell on the Interpretation of Statute'.
The general Mazim is, general in specialibus non derogant i.e. General provisions will not abrogate special previsions. When the legislature has given its intention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that subject according to its own subjectmatter and its own terms.
This Court has also taken the same view in Punjab Province V. Sita Ran and others (PLD 1956 FC 153) wherein relying on Queen V. Champneys (1870-71) CPLR 344 at 394, it was held that a subsequent general law does not indirectly repeal the earlier enactment. The principle has been re-affirmed by this Court in I.G. Police V. Mumtaz Ahmad Waraich PLD 1985 SC 159."
"Another aspect of the matter is that even if the overriding clause embodied in section 5 of the Act has reference not only to laws subsisting at the time of its enactment but also to future legislation, it is an accepted principle of interpretation of statutes that subsequent legislation on the same subject would, by necessary implication, repeal the earlier law to the extent of their mutual inconsistency or repugnancy, As observed in Goodwin V. Phillips "the latest expression of the will of Parliament must always prevail". The Court naturally leans against implying a repeal, and unless the 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 (see Kutner v. Philips). The prior statute would be repealed by implication if its previsions were wholly incompatible with a subsequent one, or if the two statutes together would lead to wholly absurd consequences; or if the entire subject-matter were taken away by the subsequent statute".
6. In view of the above, this petition is accepted and it is declared that S. 133, Cr.P.C. Comes within the mischief of implied repeal in cases covered by the pollution defined by the Pakistan Environmental Protection Act, 1997. They have not any action assuming jurisdiction still it makes no difference the impugned order dated 16.5.2000 passed by the learned Additional Sessions Judge, Sahiwal and the order dated 10.11.1998 passed by the Executive Magistrate, are hereby declared without jurisdiction, without lawful authority and of no legal effect.
7. At this stage, the learned counsel for the petitioners agrees that the petitioners will implement the recommendation of the Environmental Protection Agency, if reasonable time is granted.
8. Mr. Asghar A.I, Assistant Director (South) Environmental Protection Agency Punjab, Lahore is also present in person. He is an expert and is of the view that it will take six months to compete the recommendations in the circumstances of this case. As such, the petitioners are granted time till 29.7.2001 to fully implement the recommendations, failing which the Environmental Protection Agency shall take suitable action in accordance with the Pakistan Environmental Protection Act, 1997. If any difficulty comes in the way of implementation of the recommendations the Environmental Protection Agency shall fully cooperate with the petitioners by way of getting the import licence of the machinery necessary for the purpose.