2001 PLP 1139 (CLC)

"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. In a tanning unit during the processes as well as putrefaction of the protenious matter present there, injurious gases like ammonia, hydrogen sulphide etc. having intolerable obnoxious odour are produced. Similar gases are also produced during putrefaction of untreated and partially treated solid waste consisting of fleshings, fats and trimmings etc. 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. Anyhow, technically speaking, the niusance of injurious gases 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. In instant case following is recommenced: (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 far 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 iii the peculiar 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 therefore. As has been suggested a repeal takes place under these circumstances, even though the new act contains no repealing clause, and in face of the fact that there 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 prevail. Technically, there is perhaps a violation of the Constitutional provision but from a practical stand point the circumvention can be easily justified. " In the case of Muhammad Yusuf Ali Shah v. Federal Land Commission; Government of Pakistan, Rawalpindi and 2 others 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 natural inconsistency or repugnancy. Similarly, in the case of Rehmani Gul v. Rent Controller and others 1987 SCMR 866 it was observed:‑‑ "It is well‑settled that a special law shall prevail over subsequent laws of general nature. This principle is enshrined in the Maxim 'generalia in specialibus non derogant'. This maxim has been explained by Maxwell in his book on Interpretation of Statutes 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 a special object or a special class of objects. A general latter law does not abrogate an earlier special one by mere applications'." 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 not to apply if the prior enactment is a special and subsequent enactment is general, the rule of law being as stated by Lord Sulborne in Soward v. Wera Cruz, 'that where there are general words in a latter Act capable of reasonable and sensible application without extending them to subjects specially 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 Statutes'. The general maxim .is, Geueralia in specialibus non derogrant i.e. General provisions will not abrogate special provisions. 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 subject‑matter and its own terms. This Court has also taken the same view in Punjab Province v. Sita Ram 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 Warraich PLD 1985 SC 159." In the case of Maj. Mehtab Khan v. The Rehabilitation Authority and another and Noor Muhammad v. The Chief Settlement Commissioner and 5 others PLD 1973 Supreme Court 451, 'it was observed:‑‑‑ "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 I to both at the same time, a repeal will not be implied (see Kutner v, Phillps). The prior statute would be repealed by implication if its provisions 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 section 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 Ali, 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 complete 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 purposes. H.B.T./A‑183/L Petition accepted/Order accordingly.