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.7661/2017 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.
(By Sri.Nagaraj D, Advocate) ... Respondent 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.2773/2017 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 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 offence punishable under Sections 43 and 44 of Water Act and as such, prayed before the jurisdictional Court to take cognizance of the offence under Sections 24 and 25 of said Act punishable under Sections 43 and 44 of Water (Prevention and control of pollution) Act, 1974 (for short ‘Act’).
4. The gist of the 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 provisions of Karnataka Municipality Act, 1964 and under the provisions of Sections 24, 25 and 26 of the Water Act, consent will have to be obtained from the complainant and such as application being made during year 2007, they were permitted to discharge sewage and effluents to streams, water bodies, lakes and on land. While issuing said consent, certain conditions have been imposed for being complied.
5. It is further alleged that as on date of presentation of complaint, the Mysore City was having a population of 12,45,416 and it receives water from Cauvery and Kabini rivers and also borewells and the total water supply is 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%. To treat and dispose the sewage and sullage effluents, depending on the drainage out falls the Mysore City Corporation limits have been classified into four A, B, C & D categories i.e., A & D – Rayanakere, Vidyaranyapuram – B and Kesare – C. He further stated that application for consent for further period up to 30.06.2007 submitted by petitioners has not been considered since they have failed to comply with the conditions stipulated in consent order and considering the non compliances, the sewage treatment plant at Rayanakere which was inspected on 27.05.2014 and certain observations was made which reads;
“a. The missing links sewage and sullage effluents discharged into storm water drain leading to Dalavai lake towards southern side from Mandi Mohalla and other residential layout near JUSCO sanitary landfill site at Vidyrayanpuram.
b. The missing link sewage and sullage effluent discharged into storm water drain leading to Dalavai lake towards south-eastern side from J.P.Nagar and other residential layouts by passing wet near culvert located in Mysuru outer ring road.
c. The missing link sewage and sullage effluents are being allowed directly into natural valley leading to karnaji and Dalavi lake without any treatment and also there were no efforts to divert the sewage into STP even though STP is having spare capacity.
d. The sewage treatment plant unit is not receiving the entire sewage and sullage effluents from drainage district and the missing link sewage and sullage effluents is being allowed into low lying areas which ultimately joins natural water bodies i.e., Karanji and Dalavai which is leading to Kabini river water quality contamination.
e. As per consent conditions the treated effluent from the outlet of STP is required to be utilized into on land for irrigation and the same has not been complied.
f. The water quality of Karanji and Dalvai and River Kabini is monitored every month under NWMP programme as per the Water quality of analysis report of Kukkarhalli and Dalvai lake water quality is classified under D&E classes which reflects contamination of water and Kabini river water quality is under C.”
It is further stated in the complaint that after conducting spot inspection, mahazar came to be drawn and on furnishing to the 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 informing them 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. It is thereafter Sewage Treatment Plant (for short ‘STP’) was further inspected by the Board during the year 2016 and it was found that treated sewage was not in conformity to the standards stipulated and as such, it was alleged by the complainant i.e., respondent herein, that on account of continuous discharge of sewage and sullage effluents within the limits of Mysore City Corporation and Mysore Urban Development Authority, it has resulted in Sections 24 and 25 of the ‘Act’ being attracted. 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 the consent of Board, it constitutes an offence under Section 25 of the ‘Act. On the basis of these allegations, after obtaining the authorization file, complaint in question has been filed. For quashing of said proceedings, petitioners are before this Court.
6. 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 the complaint and same 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 invoke penal provision and it is a well designed complaint against the petitioners to target them to keep behind bars. The only allegation 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 provisions are not at all attracted.
7. 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 by contending that sub-acts, steps and execution of outlays on the basis of short term and long term plans have been carried out and this aspect has been lost sight of by the complainant before initiation of criminal prosecution. He would also draw the attention of the Court to the letter addressed by the petitioner to the Secretary, Department of Urban and Development, Government of Karnataka on 07.03.2017 seeking a sum of Rs.8786.00 lakhs to be sanctioned in order to carry out the projects so as to meet the standards prescribed by the Pollution Control Board. As such, no mens rea can be attributed to petitioners. On these grounds, he seeks for dismissal of complaint and quashing of the proceedings by allowing the petition.
8. Per contra, D.Nagaraj, learned counsel appearing for respondent would submit that petitioners being Municipal Corporation, has to set an example by complying with statutory requirements and in the instant case, it has not complied the same and it is more flouted than being complied and as such, Head of the Department would be deemed guilty of offences by virtue of the deemed provision of Section 43 of the ‘Act’. Hence, he prays for rejection of the petition.
9. While considering the prayer for quashing of proceedings, the probable defence that would be put forth during the course of trial would not be in the domain of consideration by this Court. However, if the complaint does not disclose any offence against accused, continuation of such proceedings may result either in directing the accused to undergo the ordeal of trial which would be abuse of process of law and waste of judicial time. Hence, in such circumstances, this Court would not hesitate to exercise inherent power to quash proceedings as it would not be in the interest of justice to allow the proceedings to go on. Thus, it all depends on facts and circumstances of each case and there is no straight jacket formula prescribed in this regard. Material placed by the complainant/prosecution alleging the offence against the accused is prima facie established. If on a plain and meaningful reading of the complaint, it discloses the offence, 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 state at this juncture itself that on the basis of the defence that is likely to be set up by accused may result in acquittal of accused, would also not be a ground on which prayer for quashing of the proceedings would be examined or considered. This aspect will have to be thrashed out during the trial and it would be suffice and appropriate to relegate the parties to work out their rights in the pending proceedings.
10. Keeping these statutory principle in mind, if complaint in question is examined, it would clearly indicate that petitioner/Municipal Corporation of Mysore City having obtained consent for discharge of effluents and sullage in the year 2007, has not got renewed said consent as required under the ‘Act’ from time to time on the pretext of carrying out certain works to meet the standards prescribed under the ‘Act’. It is because of this reason, Pollution Control Board/complainant also seems to have dragged its feet to exhibit its overindulgence for not taking immediate steps against petitioners which it ought to have taken at the relevant and undisputed point of time. Consent was not renewed by the Board either in the year 2011 or in the year 2016 and it is only when the situation reached alarming level, namely, alleged treated effluents and sewage was not meeting the fixed parameters and also on finding that water bodies do not have the prescribed BOD and SO level, Board has woken up from slumber and initiated the prosecution against petitioner. In the light of material placed on record disclosing that treated effluents prima facie do not meet the standards prescribed under the ‘Act’ it has given a cause of action to the complainant to file the complaint under Section 200 Cr.P.C resulting in jurisdictional Court taking cognizance of the offence against petitioners.
11. Petitioners herein are the 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, the proviso to the said provision is a succor to the accused, to establish that he would not be liable for any 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, contention of Sri.Y S Shiva Prasad, learned counsel for the petitioners which is to the effect that the Commissioner/accused persons have taken reasonable steps as expected and upright Officer is required to be examined. When so examined, it would not detain this Court for too long not to take note of said contention, for the simple reason as to whether said step taken by petitioners is a reasonable step and it was within reasonable time and are all facts which will have to be necessarily examined by the jurisdictional Magistrate after conducting of trial or recording of evidence. On the basis of the communication addressed by petitioners to the appropriate Government seeking for 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 inherent jurisdiction to quash the proceedings by accepting plea of accused. To put it differently, accused will have to establish before jurisdictional Magistrate as to what reasonable steps were taken by them by producing necessary documentary evidence to stave off their vicarious liability.
For aforesaid reasons, this Court finds there are no good ground to entertain this petition.
Hence, petition stands rejected.
In view of dismissal of above petition, I.A No.1/2017 for stay does not survive for consideration and it stands rejected.
SD/- JUDGE NBM