IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE Mr. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION Nos. 47185-89/2015 (GM-RES) BETWEEN :
1. M/s. Bagmane Developers Pvt. Ltd., Registered office at Katha No. 66/1-3 Byrasandra Village C.V. Raman Nagar Post Bangalore – 560 093 Rep. by its Managing Director Mr. Raja Bagmane.
2. Sri. Raja Bagmane Aged about 53 years s/o. Chandregowda Managing Director M/s. Bagmane Developers Private Limited Katha No. 66/1-3 Byrasandra Village C.V. Raman Nagar Post Bangalore – 560 093.
3. Sri. Ravi Kumar Aged about 44 years S/o. K.N. Changappa Senior General Manager M/s. Bagmane Developers Private Limited Katha No. 66/1-3 Byrasandra Village C.V. Raman Nagar Post Bangalore – 560 093.
4. Sri. Sunny Thomas Aged about 45 years S/o. Thomas Maintenance Engineer M/s. Bagmane Developers Private Limited Katha No. 66/1-3 Byrasandra Village C.V. Raman Nagar Post Bangalore – 560 093 5. Sri. C.V. Rajesh Aged about 40 years S/o. Venkataramegowda Assistant General Manager M/s. Bagmane Developers Private Limited Katha No. 66/1-3 Byrasandra Village C.V. Raman Nagar Post Bangalore – 560 093. … PETITIONERS (By Sri. K. Shashi Kiran Shetty, Sr. Counsel a/w. Ms. Anuparna Bordoloi, Adv.) AND :
Karnataka State Pollution Control Board Regional Office Bangalore City East Nisarga Bhavan, 3rd Floor Thimmaiah Road 7th D Cross, Shivanagar Opp. Pushpanjali Theatre Bangalore – 560 010 Rep. by its Deputy Environmental Officer Sri. Chandrakanth J.C. … RESPONDENT (By Sri. D. Nagaraj, Adv.) ---
These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India with a prayer to quash the complaint dated 12.12.2013 and etc.
These Writ Petitions coming on for Preliminary Hearing B Group this day, the Court passed the following;
O R D E R Petitioners have sought to quash the complaint dated 12.12.2013 in PCR No. 4/2013 renumbered as C.C. No. 755/2014 and the order of summons dated 18.01.2014 passed by the learned Additional Chief Metropolitan Magistrate, Bangalore.
2. Heard the learned senior counsel appearing for the petitioners and the learned counsel appearing for the respondent – Board and perused the records.
3. The Karnataka State Pollution Control Board through the Deputy Environmental Officer filed a complaint under Section 200 Cr.P.C. seeking action against the petitioners for the offences punishable under Sections 43 and 44 of the Water (Prevention and Control of Pollution) Act 1974 referred to as `the Act’.
4. The material allegations leveled against the petitioners are that the complainant Board had refused consent for the period from 01.01.2010 to 31.12.2010 and 01.01.2011 to 31.12.2011 and inspite of it, accused No. 1 continued to operate the STP without having valid consent for operation and also in violation of the earlier condition.
5. In paragraph No. 11 of the complaint the violations noted during inspection are narrated as under:
i. STP comprises of Bar screen, Equalization tank, Aeration tank, Settling tank, Holding tank, PSF/ACT, chlorinator and associated equipments such as filter press etc.
ii. The STP was working at the time of inspection, but the bad odour near the treatment plant indicated that the same was not properly operated/maintained.
iii. There was no MLSS in the aeration tank. The effluent present in the aeration tank was possessing light yellow colour indicating the absence of bacteria.
iv. The overflow from the secondary settling tank was also possessing light yellow colour indicating that the treatment is inadequate.
v. The physical appearance of the filter press provided for dewatering of the sludge indicated that the same not has been used since several months.
vi. At the time of inspection, the chlorinator provided for disinfecting the treated effluent after passing through PSF/ACF, was not working.
vii. The STP has been constructed below ground level.
viii. During this inspection it is observed that they have laid separate line for discharging the partially treated effluent to the lower lake.
ix. The water quality in the adjoining Byrasandra lake is also deteriorated and entire lake is the blue green alage is observed.
x. During the inspection the STP operator was asked to furnish the log book & also asked quantity of sewage generated, quantify of treated effluent used for gardening, but failed to submit the same.
xi. A sample of treated effluent was collected under the provisions of Water Act & also Mahazar was drawn. The photographs of STP are enclosed for reference.
xii. The occupier has fixed digital water meters with integrators and the same are not working. Also the occupier is not indicating the meter reading in the cess returns.
xiii. As per the A/R of the samples of treated sewage collected on 14.6.2011 & 7.1.2013, the samples xiv. During the time of inspection it was observed that sufficient space is not available in the premises for using the treated effluent for on land for gardening.
6. It is contended that inspite of refusal of consent for the period from 01.01.2010 to 31.12.2010 and 01.01.2011 to 31.12.2011, the accused persons continued to operate the STP in violation of the provisions of Section 25 of the Act which is an offence punishable under Section 44 of the Act and therefore, the accused persons have committed the offence under Sections 43 and 44 of the Act.
7. Petitioner No. 1 is the company; petitioner No. 2 is the Managing Director; petitioner No. 3 is the Senior General Manager; petitioner No. 4 is the Maintenance Engineer and petitioner No. 5 is the Assistant General Manager of the petitioner No.1 company.
8. Learned senior counsel appearing for the petitioners would submit that the allegations made in the complaint would not attract the ingredients of the offence under Sections 24 or 25 of the Act. Petitioner No. 1 company had valid consent for establishment and operation of the STP. Even though for a brief period the consent was not renewed, subsequently the Board has accorded consent as required under Section 25 of the Act and therefore no offence has been committed by accused No. 1 Company. In support of his contention the learned senior counsel has placed reliance on the decision of this Court in the case of M/s. Purvankara Projects Ltd., Vs. Karnataka State Pollution Control Board, Crl.P. No. 5205/2008 disposed on 07.06.2013 and would submit that the subsequent grant of clearance would negate the allegations that the STP was in violation of the provisions of the Act. Further, the learned senior counsel submits that the petitioners had no criminal intent to commit the above offence, on the other hand the reply issued by the petitioners at Annexure L would indicate that all the defects noticed by the respondent – Board rectified and therefore there was no cause of action for the respondent – Board to initiate proceedings for criminal prosecution of the petitioners.
9. Alternatively, it is contended that the petitioners had not established any new plant and were not engaged in any new activity and therefore, the provisions of Section 25 of the Act are not applicable to the petitioners. Placing reliance on the decision of the Madhya Pradesh High Court in the case of Rajendra Kumar Wadhwan and other Vs.
M.P. Pollution Control Board, Bhopal, (M.Cr.C. No.
5675/2011 and connected matters) reported in Manu/MP/0023/2018 and the decision of the Hon’ble Supreme Court in the case of M.V. Satyaprasad Vs. State of Gujarat and another reported in 2014 SCC Online Guj 15611, the learned senior counsel further submitted that, the prosecution instituted against the petitioners without there being specific averments in the complaint that the petitioners herein were in charge of the affairs of the company at the relevant point of time, the prosecution of the petitioners is opposed to law and on this ground also the impugned proceedings are liable to be quashed.
10. Refuting the above submissions, learned counsel appearing for the respondent – Board at the outset would submit that none of the decisions relied on by the learned senior counsel appearing for the petitioners would apply to the facts of the case. The decision in Crl.P. No. 5205/2018 relates to the construction of a residential complex and the nature of violations therein were punishable under the Environmental Protection Act, 1986 and in the said context it was held by this Court that the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the provisions of the Air (Prevention and Control of Pollution) Act 1981 are not applicable, whereas, in the instant case the allegations made against the petitioners fall within the purview of Sections 24 and 25 of the Act. In terms of the above provisions, absence of consent itself would constitute an offence and therefore, the principles laid down in the above decision are not applicable to the facts of the case. Further, disputing the contention raised with regard to the prosecution of petitioner Nos.1 to 5 for the alleged offence, the learned counsel for the respondent – Board would submit that necessary averments are made in the complaint to the effect that all the petitioners were in charge of the affairs of petitioner No.1 - Company at the relevant time and were instrumental in operating the STP without proper consent. Referring to Section 47 of the Act, he argued that in view of the proviso to Section 47, if for any reason, petitioners were not responsible for the operation of the STP the said proviso places the burden on the petitioners/accused persons to prove that the offence was committed without their knowledge and that despite exercise of due diligence for prevention of such offence, the offence has been committed. In the light of said provision, the contention urged by the learned senior counsel appearing for the petitioners are legally not tenable and thus seeks to dismiss the petitions.
11. Upon hearing the learned counsels appearing for the parties and having regard to the contentions urged in the petition, the point that arises for consideration is: whether the operation of the STP by petitioner No. 1 – company without consent from the respondent – Board prima facie constitute the offence punishable under the provisions of Sections 24 and 25 of the Act?
12. Undeniably, prosecution is launched against the petitioners on the specific allegations that petitioner No. 1 company has been operating the STP without their consent from 01.01.2010 to 31.12.2010 and from 01.01.2011 to 31.12.2011.
13. Sections 24 and 25 of the Act which are relevant to answer the above question read as under:
24. Prohibition on use of stream or well for disposal of polluting matter, etc.-
(1) Subject to the provisions of this section, -
i. no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any [stream or well or sewer or on land]; or ii. no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.
(2) A person shall not be guilty of an offence under sub-section (1), by reason only of having done or caused to be done any of the following acts, namely:-
a) Constructing, improving or maintaining in or across or on the bank or bed of any stream of any building, bridge, weir, dam sluice, dock, pier, drain or sewer or other permanent works which he has a right to construct, improve or maintain;
b) depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for supporting, repairing or protecting the bank or bed of such stream provided such materials are not capable of polluting such stream;
c) putting into any stream any sand or gravel or other natural deposit which has flowed from or been deposited by the current of such stream ;
d) causing or permitting, with the consent of the State Board, the deposit accumulated in a well, pond or reservoir to enter into any stream.
(3) The State Government may, after consultation with, or on the recommendation of, the State Board, exempt, by notification in the Official Gazette, any person from the operation of sub-section (1) subject to such conditions, if any, as may be specified in the notification and any condition so specified may by a like notification be altered, varied or amended.
25. Restrictions on new outlets and new discharges.-(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,-
a. establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or b. bring into use any new or altered outlet for the discharge of sewage; or c. begin to make any new discharge of sewage:
provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary prior to such commencement, may continue to do so for a period three months from such commencement or, if he has made an application for such consent, within the said period of three months, till the disposal of such application.
(2) An application for consent of the State Board under sub-section (1) shall be made in such particulars and shall be accompanied by such fees as may be prescribed.] (3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry shall follow such procedure as may be prescribed.
(4) The State Board may-
a) grant its consent referred to in sub- section (1), subject to such conditions as it may impose, being-
i. in cases referred to in clauses (a) and (b) of sub-section (1) of section25,conditions as to the point of discharge of sewage or as to the use of that outlet or any other outlet for discharge of sewage;
ii. in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discharge or new discharge is to be made; and iii. that the consent will be valid only for such period as may be specified in the order, and any such conditions imposed shall be binding on any person establishing or taking any steps to establish any industry, operation or process, or treatment and disposal system of extension or addition thereto, or using the new or altered outlet, or discharging the effluent from the land or premises aforesaid; or b) refuse such consent for reasons to be recorded in writing.
(5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge.
(6) Every State Board shall maintain a register containing particulars of the conditions imposed under this section and so much of the register as relates to any outlet, or to any effluent, from any land or premises shall be open to inspection at all reasonable hours by any person interested in, or affected by such outlet, land or premises, as the case may be, or by any person authorized by him in this behalf and the conditions so contained in such register shall be conclusive proof that the consent was granted subject to such conditions.] (7) The consent referred to in sub-section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board.
(8) For the purposes of this section and sections 27 to 30.-
the expression “new or altered outlet” which is wholly or partly constructed on or after the commencement of this Act or which (whether so constructed or not) is substantially altered after such commencement;
the expression “new discharge” means a discharge which is not, as respects the nature and composition, temperature, volume, and rate of discharge of the effluent substantially a continuation of a discharge made within the preceding twelve months (whether by the same or a different outlet), so however that a discharge which is in other respects a continuation or previous discharge made as aforesaid shall not be deemed to be a new discharge by reason of any reduction of the temperature or volume or rate of discharge of the effluent as compared with the previous discharge.
14. A bare perusal of the above provision would indicate that no person shall, without the previous consent of the State Board, would either establish or operate any establishment or industry or any treatment and disposal system or any extension or addition thereto which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land. Though a contention has been urged by the learned senior counsel appearing for the petitioners that no operations were carried on and no discharge of effluents were being made in violation of the said provision, yet the allegations made against the petitioners in paragraph No. 11 of the complaint, as extracted above, would indicate that during the inspection it was found that the STP was in working condition. It is specifically stated in the complaint as well as in the inspection report that a sample of the effluent was collected and was subjected for analysis. Therefore, the argument of learned senior counsel for the petitioners that during the above period the STP was not in operation cannot be accepted. Allegations made in the complaint coupled with the documents produced by the respondent – Board along with the complaint clearly make out the ingredients of the offence under Section 24 and 25 of the Act. Therefore, the contention of the learned senior counsel for the petitioners that the complainant Board has failed to make out an offence under the said provisions is liable to be rejected.
15. Coming to the prosecution of petitioner Nos. 1 to 5 for the above offences are concerned, a reading of the complaint discloses that petitioner No. 1 is the company; petitioner No. 2 was the Managing Director; petitioner No.
3 was the Senior General Manager; petitioner No. 4 was the Maintenance Engineer and petitioner No. 5 was the Assistant General Manager of petitioner No.1 company. Except describing petitioner Nos. 2 to 5 by their designation I do not find any averments in the complaint to show that any of these accused were involved either in the operations or in discharge of effluents in violation of Sections 24 and 25 of the Act. No doubt there are specific averments in the complaint that petitioner No. 3 had submitted an application for consent and he had attended a personal hearing and in his presence petitioner No.1 -
company was asked to adopt zero discharge concept. These allegations, in my view, do not render them vicariously liable for the alleged activities of petitioner No. 1 company.
16. A bare reading of Section 47 of the Act indicates that where an offence is committed by a company, every person who at the time of the offence was in charge of and was responsible to the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. There is nothing in the entire complaint to suggest that petitioner Nos. 3 to 5 were either in charge of the petitioner No. 1 company or were responsible for the conduct of the business of petitioner No. 1 company at the relevant time. On the other hand, going by the averments made in the complaint, petitioner No. 2 was the Managing Director of the petitioner No.1 company. Therefore, in view of the proviso to Section 47 of the Act, in my view, only petitioner No. 1 being the company and the petitioner No. 2 being the Managing Director of the said company are liable for prosecution for the alleged violation of the provisions of the Act.
17. In the light of the above discussion, I hold that the prosecution launched against petitioner Nos. 3 to 5 for the above offences cannot be sustained and is liable to be quashed. As a result, I proceed to pass the following;
O R D E R I. Petitions are allowed in part.
II. The proceedings in C.C. No. 755/2015 arising out of PCR No. 4/2013 for the offences punishable under Sections 43 and 44 of the Water (Prevention and Control of Pollution), Act, 1974 are quashed only insofar as petitioner Nos. 3 to 5 (Sri. Ravi Kumar, Senior General Manager, Sri. Sunny Thomas, Maintenance Engineer and Sri. C.V. Rajesh, Assistant General Manager) are concerned.
III. Petitions filed by petitioner Nos. 1 and 2 are dismissed.
IV. The trial Court shall proceed against petitioner Nos.
1 and 2 (M/s. Bagmane Developers Private Limited and Sri. Raja Bagmane) in accordance with law.
Sd/- JUDGE.
LRS.