IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.7660/2017 Between:
1. The Commissioner, Mysore City Corporation, Sayyaji Rao Road, Mysore – 570 001. Reptd. By G.Jagadish.
2. The Executive Engineer, (UGD) Division, Vani Vilas Water Supply, Yadavagiri, Mysore – 570 020 Reptd by H.C.Subramanya. ... Petitioners (By Sri.Shiva Prasad Y.S, Advocate) And:
The Karnataka State Pollution Control Board Rept by Environmental Officer, Smt.Geetha B.P.
W/o Dr.N.Shivakumar, Zonal office, Mysore Plot No.436, D Hebbal, Industrial Area, K.R.S Road, Molagalli, Mysore – 570 016. ... Respondent (By Sri.Nagaraj D, Advocate) This Criminal Petition is filed under Section 482 of Cr.P.C praying that this Hon’ble Court may be pleased to quash the entire proceedings initiated by respondent against the petitioner in C.C.No.2772/2017 pending on the file of the I/c II Additional I Civil Judge and Judicial Magistrate First Class, Mysuru for the alleged offences under Sections 43 and 44 of Water Act and etc.
This Criminal Petition coming for Admission this day, the Court made the following:
O R D E R Though matter is listed for admission, by the consent of learned counsel appearing for parties, it is taken up for final disposal.
2. Heard Sri.Y.S.Shiva Prasad, learned counsel appearing for petitioners, Sri.D.Nagaraj, learned counsel appearing for respondent.
3. Respondent herein has filed a complaint under Section 200 of Cr.P.C before the I/c II Additional I Civil Judge and Judicial Magistrate First Class, Mysuru against petitioners herein alleging that petitioners have committed offences punishable under Sections 43 and 44 of Water Act and as such, prayed for cognizance being taken by the jurisdictional Court for the offence punishable under Sections 24 and 25 and Sections 43 and 44 of Water (Prevention and Control of Pollution) Act, 1974 (for short ‘ Water Act’).
4. The gist of complaint is that; accused persons who are Heads of different Government establishments are under legal obligation to treat the sewage and effluents generated within the city limits of Mysore, before discharging the same to streams, water bodies and lakes and on land in order to maintain the wholesomeness of water in accordance with the provisions of Karnataka Municipality Act, 1964 and under the provisions of Sections 24, 25 and 26 of the Water Act, by obtaining consent from the complainant and as such application came to be submitted during year 2007, which was considered and consent came to be issued to petitioners for discharge of sewage and effluents to streams, water bodies, lakes and on land by imposing certain conditions for being complied.
5. It is further alleged that as on the date of presentation of the complaint, the Mysore City was having a population of 12,45,416 and was receiving water from Cauvery and Kabini rivers and also borewells and the total water supply was about 224 MLD. It is further stated that sewage and sullage effluents developed from household supply, non- domestic and commercial activities would be at 80% of total water supply and to treat and dispose the sewage and sullage effluents so generated, depending on the drainage out falls the Mysore City Corporation limits has been classified into four A, B, C & D categories i.e., A & D – Rayanakere, Vidyaranyapuram – B and Kesare – C. It is further alleged that application for consent for further period up to 30.06.2007 submitted by petitioners has not been considered since they had failed to comply with the conditions stipulated in consent order and considering the non compliances, the sewage treatment plant at Rayanakere was inspected on 27.05.2014 and following observations was made;
“a. The STP was not under operation and the treated sewage and sullage effluents from the outlet (Polishing pond) of Sewage Treatment Plant-1 & 2 located in Rayanakere was discharged into Dadadahalli (Yennehole) Lake located towards South-western side.
b. The area in and around STP has not been cleaned and cleared with weeds and the house keeping around the STP is not proper and also there were no qualified persons to operate the STP, inflow and outflow of effluent has not been recorded in absence of flow measuring devices.
c. Besides, the missing links sewage and sullage effluents are being allowed to discharge directly into natural valleys leading Lingambudhi and Dadadahalli Lakes finally leads to Kabini river without any treatment and also there were no efforts to divert this sewage into the STP even though the STP is having spare capacity.
d. The sewage treatment plant unit is not receiving the entire sewage and sullage effluents from the drainage district and the missing link sewage and sullage effluents are being discharged into low lying areas which ultimately join natural water bodies i.e. Lingambudhiand Dadadahalli lakes leading to contamination of Kabini River water.
e. As per consent conditions the treated effluent from the outlet of STP conforming to the standards prescribed by the Board is required to be utilized into on land for irrigation and the same has not been complied.
f. The water quality of Kukkarahalli, Lingambudhi, Dadadahalli, Yenneholelakes and River Kabini is being monitored every month under NWMP programme. As per water quality analysis reports, the Kukkarahalli, Lingambudhi and Dadadhalli Lake water quality is classified under D and E class which reflects the contamination of water and the Kabini River water quality is under C class.”
6. After conducting above said spot inspection, mahazar is said to have been drawn and on furnishing petitioners the samples of treated effluents, it was found that samples were not in conformity to the standards prescribed by the Board and on issuance of show cause notice by the Board to the petitioners and also informing petitioners to take steps to divert the sewage and sullage to the STP and treat the effluent to the stipulated standards, notices are said to have been issued to petitioners. It is thereafter Sewage Treatment Plant (for short ‘STP’) was further inspected by the Board during the year 2016 and found that treated sewage was not in conformity to the standards stipulated and thereby, it is alleged by the complainant i.e., respondent herein that due to continuous discharge of sewage and sullage effluents within the limits of Mysore City Corporation and Mysore Urban Development Authority, it has resulted in violation of Sections 24 and 25 of the ‘Act’. It is further alleged that on account of discharge of certain effluents into the water bodies, the level of Bio Oxygen Demand (BOD) and Suspended Solids (SO) has reached beyond the stipulated limits and it constitutes an offence under Section 43 of the ‘Act’ and on account of treated effluents being discharged without consent of the Board, it would constitute an offence under Section 25 of the ‘Act. On the basis of these allegations, after obtaining the authorization to file the complaint in question, same has been filed. For quashing of the said proceedings, petitioners are before this Court.
7. It is the contention of Sri.Shiva Prasad Y S, learned counsel appearing for petitioners that developmental activities taken or carried out by petitioners/accused is not even stated in complaint and such steps/measures taken by petitioners has not been taken note of by the Board to examine as to whether there has been any intentional act on the part of accused so as to attract penal provision and it is a well designed complaint filed against the petitioners to target them to keep behind bars. He would contend that only allegation made against petitioners is that treated effluents are not meeting the standards and as such, there is no allegation that sewage and sullage effluents are not being treated and as such, the penal provision is not attracted.
8. He would also submit that application for consent submitted has not been considered by the Board and an attempt is made to project as though consent itself has not been obtained which is erroneous. He would also elaborate his submissions contending that the sub-acts, steps and execution of outlays carried out on the basis of short term and long term plans have been lost sight of by the complainant before initiation of criminal prosecution. He would also draw attention of the Court to the letter addressed by the petitioners to the Secretary, Department of Urban and Development, Government of Karnataka on 07.03.2017 seeking release of sum of Rs.8786.00 lakhs in order to carry out the proposed projects so as to meet the standards prescribed by the Pollution Control Board and it is yet to be released. As such, he contends that no mens rea can be attributed to petitioners. On these grounds, he seeks for dismissal of the complaint and prays for quashing of proceedings by allowing this petition.
9. Per contra, D.Nagaraj, learned counsel appearing for respondent would submit that petitioners being Municipal Corporation, has to set standard by complying with all statutory requirements and in the instant case, it has not been complied and it is flouted more than being complied and as such, Head of the Department would be deemed guilty of offences by virtue of deemed provision of Section 43 of ‘Act’. Hence, he prays for rejection of the petition.
10. If on a plain and meaningful reading of the complaint, it discloses the offence alleged complaint cannot be quashed and this Court would not stifle the proceedings at the threshold and it would be apt and appropriate to allow such proceedings to continue. It would also be appropriate to notice at this juncture itself that on the basis of probable defence that is likely to be set up by the accused during trial would result in acquittal, would also not be a ground on which the prayer for quashing of the proceedings would be examined and considered while considering the prayer for quashing. This aspect will have to be thrashed out during the trial and it suffice and appropriate to relegate the parties to work out their rights in the pending proceedings. If the complaint does not disclose an offence alleged against accused and such allegations are so vexatious and frivolous, then continuation of such proceedings may result either in directing the accused to undergo the ordeal of trial and it would be an abuse of process of law and waste of judicial time. In such circumstances, this Court would not hesitate to exercise the extraordinary power vested in this Court to quash proceedings as its continuation would not be in the interest of justice also. Thus, it all depends on facts and circumstances of each case and there cannot be any straight jacket formula prescribed in this regard.
11. Keeping these salutary principles in mind, if the complaint in question is examined, it would clearly indicate that petitioners/Municipal Corporation of Mysore City having obtained a consent in the year 2007, has not got the consent renewed from time to time as required under the ‘Act’ from time to time, but on the pretext of carrying out certain works to meet the standards prescribed under the ‘Act’ standards prescribed under the Act is not complied. It is because of this reason, Pollution Control Board/complainant also seems to have dragged on its feet and exhibited over indulgence by not taking immediate steps which ought to have been taken at the relevant point of time and obviously accused are officials of the Government being posted on deputation and it controlled by it. When consent was not renewed either in the year 2011 or in the year 2016 and situation of pollution reached to alarming levels, namely, alleged treated effluents and sewage did not meet the parameters/standards fixed under the Act and also on finding that water bodies to which alleged treated effluents were discharged did not have the prescribed BOD and SO level, they have woken up from their slumber and initiated the prosecution, at that juncture. In that view of the matter and is the teeth of material placed on record disclosing that alleged treated effluents prima facie do not meet the standards prescribed under the ‘ Water Act’, it has given a cause of action to file the complaint under Section 200 Cr.P.C resulting in jurisdictional Court taking cognizance of the offence alleged against petitioners.
12. Petitioners herein are Commissioner, Mysore City Corporation and the Executive Engineer, (UGD) Division. Where any Department of the Government commits an offence under the ‘Act’, the Head of the said Department would be liable to be prosecuted and punished accordingly Section 48 is a complete answer to this proposition. However, proviso to the said provision is a succour to an accused to establish that he would not be liable for any such punishment on the ground that offence alleged against him was committed without his knowledge or that he had exercised due diligence to prevent commission of such an offence. In this background, the contention of Sri.Y S Shiva Prasad, learned counsel for the petitioners which to the effect that Commissioner/ accused persons have taken reasonable steps as expected and they are upright Officer when examined, it would not detain this Court for too long to brush aside the same for the simple reason there are all defence which will have to be placed before trial Court to be considered by trial Court to find out as to whether such steps taken by the petitioners are all reasonable steps and it was within reasonable time and as such, they are liable to be acquitted. Thus, it will have to be necessarily examined by the jurisdictional Magistrate after conducting trial or recording evidence. On the basis of communication addressed by the petitioners to the appropriate Government seeking grant of money to execute the project so as to meet the standards prescribed by the Pollution Control Board by itself is not ground on which this Court can exercise extraordinary jurisdiction by accepting the plea of accused to quash the proceedings. To put it differently, accused will have to establish before the jurisdictional Magistrate all such reasonable steps taken by them producing necessary documentary evidence and establish their defence to stave off vicarious liability. In view of aforesaid discussion, this Court is of the considered view that these are not good grounds to entertain this criminal petition filed for quashing proceedings.
No other good grounds made out. Hence, Criminal petition is rejected.
In view of rejection of above petition, I.A No.1/2017 for stay does not survive for consideration and it stands rejected.
SD/- JUDGE NBM