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.;