ENVIRONMENTAL LAW

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Use of Criminal Law Machinery for Environment Protection
by K. Rama Joga Rao *

Cite as : (2001) 7 SCC (Jour) 58

"The Sky is like Father
The Earth is like Mother and
The Space as Their Son
The Universe consisting the Three
is like a Family and
Any kind of damage done to any one of the Three
Throws the Universe out of Balance"

                       Rigveda, 160.2; 6.51.5

Backdrop

There is now, the world over, proliferation of environmental laws operating at various levels. Any discussion of this phenomenon must notice the paradigm changes in the concept of standing (locus standi) as also the role of the court.1

This initiation of public interest litigation, the timely demise of the law of standing, and the expansive interpretation of Article 21 of the Constitution2 paved the way for the development of a body of environmental law. The Supreme Court of India started showing concern about environmental problems much before the Rio Treaty and long before it started reaching out to international treaties to provide a jurisprudential basis for its decisions. One such innovative interpretation of the Apex Court is extending criminal sanctions to the environmental problems e.g. the Ratlam Municipal Council case3.

The problem that presented itself before the Court was in one sense no different from a daily spectacle in the overpopulated townships of India: the absence of proper drainage systems creating nuisance of garbage accumulation on the streets. The response of the Court was however fascinatingly different: it reached out to Section 133 of the Criminal Procedure Code that confers upon the Magistracy summary power to give directions for abatement of a public nuisance and elected the Judicial Magistrate to frame a scheme to provide a working drainage system of sufficient capacity to meet the needs of the people4.

What Section 133 CrPC provides

Section 133 CrPC provides a speedy and summary remedy in case of urgency where damages to public interest or public health etc. is concerned5. It runs as under:

"133. (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information on taking such evidence (if any) as he thinks fit, considers-

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or

(c) that ...; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of,

such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or

(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;

or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any civil court.

In all proceedings initiated under this section, the Magistrate should bear in mind that he is supposed to be acting purely in the interest of the public, and should be on this ground against any tendency to use this section as a substitute for litigating in the civil court in order to arrive at the settlement of a private dispute6.

For invoking jurisdiction under Section 133(1) CrPC it is not necessary that there should always be danger or inconvenience to public at large but even if danger or inconvenience is about to be caused, it is actionable under Section 133(1) and 138 CrPC.7 But the Magistrate has to act purely in the interest of the public. Drastic powers are conferred by Section 133(1). Those powers should be sparingly used. Any order made under Section 136 without notice under Section 133(1) is bad, consequential order under Section 144 is also bad8.

Conditions precedent for the application of Section 133 CrPC

In order to provide a sanction under Section 133 the Magistrate must be satisfied that-

1. It is a public nuisance i.e. the number of persons injuriously affected is so considerable that they may reasonably be regarded as the public or a portion of it.

2. It is not a private dispute between different members of the public for which the proper forum is the civil court.

3. It is a case of great emergency of imminent danger to the public interest9.

Section 133 CrPC vis-a-vis other special laws

There are other special or local laws dealing with nuisance. But the Magistrate's power to act under Section 133 is not affected by them10. Even the Water (Prevention and Control of Pollution) Act, 1974 has not taken away powers of the Sub-Divisional Magistrate under Section 133 CrPC. The Sub-Divisional Magistrate has power to close a factory causing pollution, when appreciation certificate from the Pollution Control Board is not produced11. Section 24 of the Environment (Protection) Act, 1986 reads:

"24. (1) Subject to the provisions of sub-section (2), the provisions of this Act and the rules or orders made therein shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.

(2) Where any act or omission constitutes an offence punishable under this Act and also under any other Act then the offender found guilty of such offence shall be liable to be punished under the other Act and not under this Act."

Therefore using criminal law machinery is not a bar even as per the Environment (Protection) Act, 1986.

In Lakshmi Cement case12 it was held that Section 133 CrPC does not automatically or impliedly get repealed after the commencement of the Air (Prevention and Control of Pollution) Act, 1981. So proceedings under Section 133 CrPC are not barred13.

Order of proceedings under Section 133

(1) issue of conditional ex parte orders14

(2) service of order15

(3) person to obey or show cause16

(4) in urgency, issue of temporary injunction17

(5) enquiry and findings' recording18

(6) examination by an expert19

(7) dropping or continuing the proceedings20

(8) enforcement21

Judicial review

To analyze the use of criminal sanctions for abatement of environmental nuisance it is essential to consider the various precedents in this regard. In Ajeet Mehta v. State of Rajasthan22 it was held that stocking of fodder on a certain plot in a residential colony constitutes pollution of atmosphere and hence public nuisance. The order directing removal of this nuisance was held valid and the respondents were directed not to do any business of fodder on that plot.

In another case there were fodder tali in a residential colony to which fodder was brought daily during the night by trucks which were unloaded in the morning. This caused intolerable noise, emanating offensive smell and spreading dust-containing particles of fodder cut. It was held as public nuisance23.

In Nagarjuna Paper Mills case13 it was observed by the A.P. High Court that the power relating to air and water pollution, the Water Act, 1974 has taken away the power of the Sub-Divisional Magistrate to pass an order to close a factory causing pollution24. The abovesaid view was also confirmed by the Supreme Court in Ratlam case3 where Their Lordships held that "when on disclosure of existence of a public nuisance from information and evidence, the Magistrate considers that such unlawful obstruction or nuisance should be removed from any public place which maybe lawfully used by the public, he is to order removal of such nuisance". (SCC p. 170, para 13)

Limitations

But while passing an order under Section 133 the Magistrate should be very keen about the complaint and also should see the fulfilment of the required conditions as stipulated. Otherwise the order passed by such Magistrate can be held illegal as it was in Chabila Roy v. State25 where the Magistrate on receiving a complaint regarding the running of a "khatal" did not examine the petitioner and the local people about the physical discomfort or health hazard on account of the "khatal", passed an order. It was held that the order was illegal being in variance with express provisions of Section 133 CrPC.

Provisions under criminal law

In addition to the provisions of CrPC, Chapter XIV26 of the Indian Penal Code deals with public nuisance. It is undoubtedly an offence affecting the public health, safety, convenience, decency and morals. Under the penal law of India, nuisance is of two kinds: public and private. Public or common nuisances, which affect the public, and are an annoyance to all citizens are treated as public wrongs27. Thus a person trotting rams trained to fight in a market place28, a person fouling the water of a streamlet by putting into it bundles of stalks of tur plants29, a person throwing dust and sweeping on the road in front of his house and thus making the atmosphere noxious to health30, a woman keeping on her premises vegetable matter which caused a smell offensive to a person using the public street31 were guilty of public nuisance.

Provisions under the Municipal Act

With the development of the local Municipal Act, a penal sanction was also available under the relevant Municipal Act32.

Provisions under the Factories Act 1948

Section 96-A33 speaks about penalty for contravention of the provisions under Sections 41-B, 41-C and 41-H:

"96-A. (1) Whoever fails to comply with or contravenes any of the provisions of Section 41-B, 41-C or 41-H or the rules made thereunder, shall, in respect of such failure or contravention, be punishable with imprisonment for a term which may extend to seven years and with fine which may extend to two lakh rupees, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.

(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to ten years."

Conclusion

From the above discussion, it is evident and clear that even prior to the development of the Environment Protection Act, 1986 and the Rio Declaration the Indian judiciary has set up a new jurisprudence for the environment protection and also for the prevention of environmental pollution. If this thought is interpreted further i.e. use of criminal machinery for the protection of the environment, it is sure that the environmental problems can be solved speedily and economically, and a revolutionary change can be brought not only to safeguard the environment but also safeguard the lives of the public at large. Because in the present context as said by Justice V.R. Krishna Iyer "it is not how many laws we have, it is how effectively we implement". Hence invoking Section 133 CrPC and other relevant criminal provisions under different laws will pave a way for the better environmental governance and also for the abatement of environmental nuisance.

*   K. Rama Joga Rao, Lecturer in Law, National University of Juridical Sciences, Kolkata Return to Text

1. Harish Salve, "Justice between generations: Environment and Social Justice" as published in Supreme But Not Infallible, Oxford University Press, p. 367. Return to Text
2. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 - the "procedure established by law" giving way to due process of law - the right of life being understood as more than just a right to animal existence. Return to Text
3. Municipal Council, Ratlam v. Vardichan, (1980) 4 SCC 162 Return to Text
4. Infra 1 at p. 369 Return to Text
5. 1977 KLT 329 Return to Text
6. Farzand Ali v. Hakim Ali, ILR (1915) 37 All 26, 28 Return to Text
7. Budh Singh v. Hapu Ram, 1996 Cri LJ 1576 (Raj) Return to Text
8. Narayan Sahu v. Sub-Divisional Magistrate, 1986 Cri LJ 102 (Ori) Return to Text
9. Kalyanasundaram v. Kalyani Ammal, 1975 Cri LJ 1717 (Mad) and also see Narayan v. SDM, 1986 Cri LJ 102 (Ori) Return to Text
10. Shaukat Hussain v. Sheodayal Saksaina, AIR 1958 MP 350 Return to Text
11. Nagarjuna Paper Mills Ltd. v. SDM and RDO, 1987 Cri LJ 2071 (AP), see also P.M. Bakshi: Procedural Options in Environmental Law, (1993) Return to Text
12. Lakshmi Cement v. State, 1994 Cri LJ 3649 (Raj) Return to Text
13. Ibid Return to Text
14. Section 133(1) CrPC Return to Text
15. Section 134 CrPC Return to Text
16. Section 135 Return to Text
17. Section 142 CrPC Return to Text
18. Section 137(2) Return to Text
19. Section 139 CrPC Return to Text
20. Section 138 Return to Text
21. Section 141 CrPC Return to Text
22. 1990 Cri LJ 1956 (Raj) Return to Text
23. Himmat Singh v. Bhagwana Ram, 1988 Cri LJ 614 (Raj) Return to Text
24. Infra 13 Return to Text
25. 1983 Cri LJ NOC 203 (Cal) Return to Text
26. See Sections 268, 269-286 of the Indian Penal Code, 1860 Return to Text
27. P.S.A. Pillai: Criminal Law, Butterworths, 9th Edn., p. 505 Return to Text
28. Rajah Sahid, (1883) 1 Weir 243 Return to Text
29. Vithoba, 1884 Unrep Cr C 203 Return to Text
30. Vasudeve Cheti, (1882) 1 Weir 242 Return to Text
31. (1883) 1 Weir 243 Return to Text
32. For example Section 53 of the Calcutta Municipal Act, 1951. Under Section 53 of the Act: "53. (1) The corporation, or any person who resides or owns property in Calcutta, may complain to a Magistrate, of the existence of any nuisance. (2) Upon receipt of any such complaint, the Magistrate, after making such enquiry as he thinks necessary, may, if he sees fit, by written order direct the person responsible for the nuisance or the owner of the land or premises on which the nuisance has taken place, to take such measures as to such Magistrate may seem practicable and reasonable, and within such period as may be specified in the order for abating, preventing, removing or remedying such nuisance, and may direct the corporation to put in force any of the provisions of this Act, or the rules, or bye-laws made thereunder...." Return to Text
33. Inserted by Act 20 of 1987, Section 26 (w.e.f. 1-12-1987) Return to Text