IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NOS.3799-3802 OF 2016 (GM-RES) BETWEEN:
1. NITESH RESIDENCY HOTELS PVT LTD (RITZ CARLTON HOTEL, BANGALORE) 25-A, IMPERIAL COURT, 2ND FLOOR CUNNINGHAM ROAD, BANGALORE - 560 052 REP. BY ITS MANAGING DIRECTOR SRI NITESHSHETTY AGED ABOUT 38 YEARS, S/O SRI P.V.SHETTY MANAGING DIRECTOR.
2. SRI NITESH SHETTY S/O SRI P V SHETTY AGED ABOUT 38 YEARS, MANAGING DIRECTOR NITESH RESIDENCY HOTELS PVT. LTD., (RITZ CARLTON HOTEL, BANGALORE) 25-A, IMPERIAL COURT, 2ND FLOOR, CUNNINGHAM ROAD, BANGALORE - 560 052.
3. SRI RAJIV RAO S/O S.V.RAO, AGED ABOUT 68 YEARS, RETAINER, IN CHARGE OF DOCUMENTATION IN NITESH RESIDENCY HOTELS PVT. LTD., (RITZ CARLTON HOTEL, BANGALORE) 25-A, IMPERIAL COURT, 2ND FLOOR, CUNNINGHAM ROAD, BANGALORE - 560 052.
4. SRI KARUNA KUMAR S/O K.N.DAMODARAM PILLAI AGED ABOUT 52 YEARS, DIRECTOR OF ENGINEERING AND IN CHARGE OF POLLUTION CONTROL IN THE HOTEL, NITESH RESIDENCY HOTELS PVT. LTD., (RITZ CARLTON HOTEL, BANGALORE) 25-A, IMPERIAL COURT, 2ND FLOOR, CUNNINGHAM ROAD, BANGALORE - 560 052.
... PETITIONERS (BY SRI: K.SUMAN, ADVOCATE FOR PETITIONER NO.1 SRI:ZULFIKIR KUMAR SHAFI, ADVOCATE FOR PETITIONER NOS.2 TO 4) AND THE KARNATAKA STATE POLLUTION CONTROL BOARD ’PARISARA BHAVANA’, 1ST TO 5TH FLOOR NO. 49, CHURCH STREET BANGALORE - 560 001.
REPRESENTED BY ITS CHAIRMAN. (BY SRI: D NAGARAJ, AGA ) ... RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA AND SECTION 482 OF CR.P.C. PRAYING TO QUASH THE COMPLAINT DATED 26.11.2014 IN CC.NO.3/2015 GIVEN BY RESPONDENT TO THE LEARNED METROPOLITAN MAGISTRATE, TRAFFIC COURT, BANGALORE FOR OFFENCES PUNISHABLE UNDER SEC.43 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974 AND SEC.37 OF THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT 1981 VIDE ANNEXURE-A; QUASH THE ORDER OF SUMMONS DTD:05.01.2015 PASSED BY THE LEARNED METROPOLITAN MAGISTRATE, TRAFFIC COURT, BANGALORE IN CC.NO.3/2015 VIDE ANNEX-B; DIRECT DECLARING THAT THE PETITIONER HAS NOT COMMITTED ANY OFFENCES PUNISHABLE UNDER SEC.43 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974 AND SEC.37 OF THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT 1981.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner No.1 is a Company registered under the Companies Act. It has set up a Five Star Hotel on Residency Road by name Ritz Carlton Hotel, Bengaluru. Petitioner No.1 and its officers namely petitioner Nos.2 to 4 are accused of running the said hotel without consent as required under the provisions of section 25 of the Water (Prevention and Control of Pollution Act, 1974) hereinafter referred to as “Water Act 1974”.
The necessary averments in this regard find place in paragraph Nos.7, 9, 10 and 18 of the complaint dated 26.11.2014 in C.C.No.3/2015 which read as under:-
7. It is submitted that on 30th July 2011, the Complainant Board issued consent for establishment to the Accused No.1 Hotel for construction of 5 Star Hotel with 251 Guest Rooms, and 26 Suite Rooms with built up area measuring 44,442.92 sq. mts., and thereafter on 29.1.2013 the Complainant Board issued consent for operation to the Accused No.1 Hotel to operate the Hotel business in the said premises. The said consent was valid upto 30.6.2013 and thereafter on 19.8.2013, the Accused No.1 Hotel has filed an application for renewal of consent for the period upto 30.6.2014. The said consent has not been given yet in view of the complaints by the residents residing adjacent to the Accused No.1 Hotel premises.
9. Before commencement of the operation of the Sewage Treatment Plant, the Accused No.1 Hotel is also required to obtain consent for operation for operating the Sewage Treatment Plant and accordingly, on 29.1.2013, consent for operation was also issued to the Accused No.1 Hotel which was valid upto 30.6.2013. Copy of the consent for operation dated 29.1.2013 issued to the Accused No.1 Hotel is produced herewith and marked as Document No.6.
10. Thereafter, the Accused No.1 Hotel was not having valid consent to operate Sewage Treatment Plant under the provisions of Water Act. Therefore, it has contravened the provisions of Section 25 which is punishable under Section 43 of the Water Act.
18. It is submitted that the evidence collected i.e., during the inspection on 6.12.2013 and 16.6.2014, Mahazar drawn during the said inspection, noise levels recorded have been forwarded to the Head Office of the Complainant Board and after perusing the same, the Chairman of the Board has authorized the jurisdictional Deputy Environmental Officer to file a criminal case against the Accused persons for the violation of provisions of Section 25 of the Water Act, Section 21 and 22 of the Air Act punishable under Sections 44 and 37 of the Water (Prevention and Control of Pollution) Act, 1974, and Air (Prevention and Control of Pollution) Act, 1981 respectively, and accordingly, the Chairman of the Board has issued authorization letter dated 15th November, 2014 to the Deputy Environmental Officer to file this complaint. Copy of the authorization letter dated 15.11.2014 issued by the Chairman of the Board to the Deputy Environmental Officer is produced herewith and marked as Document No.16.
2. The other charges levelled against the petitioners are that the petitioners have been causing noise pollution by exceeding the standards prescribed in Schedule III of the Environment (Protection) Rules, 1986. The allegations in this regard are in para Nos.11, 12 and 13 of the complaint which are extracted hereinbelow:
11. It is submitted that the Accused No.1 Hotel has installed 2 Nos. of 1500 KVA DG Sets and also 2 Nos. of Hot Water Generators of capacity 6,00,000 Kilo Calories per Hour and 5 Nos. of Kitchen Exhaust Fans. The Accused No.1 Hotel has provided a complete acoustic measures to prevent noise generation from the DG Sets, whereas the 5 Exhaust Fans provided to Kitchen, during its operation generate noise pollution, and under such circumstances, the Accused No.1 Hotel who is using all these electrical equipments for trade purpose is required to obtain consent for operation under Section 21 of the Air Act. As stated above, the first consent for operation was issued on 29.1.2013 which was valid upto 30.6.2013 and thereafter, the consent has not been renewed, and on the other hand, the Accused No.1 Hotel has operated all those machineries and plants etc., thereby contravening the provisions of Section 21 of the Air Act and committed an offence punishable under Section 37 thereof. Further, while issuing the consent for operation, the Complainant Board has imposed condition to the Accused No.1 Hotel that it shall maintain the noise levels during night time i.e., 55dB(A) Leq and 65 dB(A) Leq. since the Accused No.1 Hotel is situated in the commercial area as per the Bruhut Bangalore Mahanagara Palike Master Plan. However, towards Northern side of the said Accused No.1 Hotel, there are residential houses and the said area has been classified as residential area and for residential area, the stipulated noise level are 45 dB(A) Leq during night time, and 55 dB(A) Leq during the day time.
12. It is submitted that the residents who are residing immediately next to the Accused No.1 Hotel have complained noise pollution generated from the 5 Exhaust Fans of the Kitchen and in this regard, a complaint has been lodged to the Complainant Board against the Accused. Copy of the said complaint dated 24.09.2013 filed by the residents of the Hayes Road Cross, Hayes Road, Convert Road, Bangalore -560025 is produced herewith and marked as Document No.7.
13. With a view to verify the noise pollution as complained by the residents residing next to the Accused No.1 Hotel, on 05.12.2013 and 06.12.2013 between 6.15 p.m. to 12.30 mid night the officials of the Board have inspected the Accused No.1 Hotel particularly the noise generating place i.e., 5 Nos. Exhausting Fans in the Kitchen and their noise levels were monitored and it was found that the noise levels were exceeding 4.1 dB(A) Leq to 14.9 dB(A) Leq to the standard prescribed for the residential area. The said noise monitoring was carried in the residence of the Complainant. Copies of the Inspection Report, Mahajar and the results of the Noise monitored between 6.15 p.m. to 12.20 mid night are produced herewith and marked as Document No.8,9 and 10 responsibly.
(sic) 3. According to the complainant, the consent for establishment of the hotel was issued on 29.01.2013. It expired on 30.06.2013, whereafter the petitioners have failed to apply for renewal of the said consent, instead operated the hotel without the requisite consent, thereby committed the offences under section 25 of the Water Act, 1974 which are punishable under section 44 thereof.
4. Insofar as the accusations under the provisions of Air (Prevention and Control of Pollution) Act, 1981 (for short “Air Act, 1981) as per Schedule III of the Environment (Protection) Rules, 1986, are concerned, the allegations are that the admissible standard of noise level for commercial area during daytime is 65 dB(A) Leq and night time is 55 dB(A) Leq, whereas in the instant case, on the date of inspection on 5/6.12.2013, the hotel run by the petitioners was found generating noise exceeding 4.1 dB(A) Leq to 14.9 dB(A) Leq in violation of provisions of section 22 of the Air Act, 1981 punishable under section 37 thereof.
5(i) Learned counsel appearing for the petitioners submitted that on expiry of the initial consent, necessary application for renewal of the consent was submitted on 19.08.2013. By virtue of section 25 sub-clause (3) of the Water Act, 1974, the Board was bound to grant its consent in terms of sub-clause (4)(a) or refuse such consent by virtue of sub-clause (4)(b) by assigning reasons to be recorded in writing. In the instant case, till the date of initiation of criminal action, the Board did not act on the application submitted by the petitioners and therefore, by virtue of sub-clause (7) of section 25, consent is deemed to have been accorded by the Board. As a result, there is no violation of the provisions of section 25 of the Water Act 1974 and hence, prosecution of the petitioners for the alleged offence punishable under section 44 of the Water Act, 1974 is legally untenable.
(ii) Alternatively, it is submitted that the Board has sought for criminal action against the petitioners under section 44 of the Water Act 1974. Section 44 deals with a different situation which is not subject matter of accusations in the instant complaint. Therefore, on this score also, initiation of criminal action against the petitioners is legally untenable and an abuse of process of court and is liable to be set at naught.
(iii) With regard to the allegations attracting the offences under Air Act, 1981 are concerned, learned counsel for the petitioners has referred to the initial consent accorded by the Board for establishment of the Hotel. Clause V of the said consent reads as under:
NOISE POLLUTION CONTROL:
1 The applicant shall ensure that the ambient noise levels and ambient air quality within its premises during construction and after construction shall not exceed the limits specified in the Environment (Protection) Rules, i.e. 65dB(A) Leq. during day time and 55 dB(A) Leq. during the night time.
(iv) The contention of the learned Counsel is that the consent was accorded for establishment of Hotel for commercial purpose. The annexure appended to the said consent letter specifically provided that the noise levels shall not exceed 65 dB(A) Leq. and 55 dB(A) Leq. during day time and night time respectively. The notification issued by the Ministry of Environment and Forest dated 14.2.2000 prescribes that, a person may, if the noise level exceeds the ambient noise standards by 10 dB(A) or more given in the corresponding columns against any area/zone, make a complaint to the authority. In the instant case, the inspection report relied on by the Board indicates that at the time of inspection, the noise generated in the Hotel was within the standard prescribed for commercial purpose and therefore, on the face of it, the charges levelled against the petitioners for the alleged offences under the provisions of the Air Act 1981 are legally untenable and are liable to be quashed.
6(i) Meeting the above arguments, learned counsel appearing for the Board does not dispute the fact that permission was granted to the petitioners - Hotel to carry on commercial activities. However, he reiterates that at the time of inspection, the noise generated by the petitioners - Hotel was found to exceed the prescribed limit, as such, offence under section 37 of Air Act 1981 has been committed and therefore there is no reason to quash the complaint filed against the petitioners for the said offence.
(ii) Insofar as the offence under the provisions of the Water Act 1974 are concerned, learned counsel submits that the consent accorded to the petitioners had expired on 30.06.2013. Clause No.13 of the General Conditions required the applicant to make an application for renewal of consent atleast 120 days before expiry of consent. But, in the instant case, renewal application was submitted only on 19.08.2013 in violation of provisions of section 25 of the Water Act 1974. As a result, with effect from 01.07.2013, the petitioners are guilty of alleged violation of provisions of section 25 of the Water Act 1974, rendering them liable under section 44 of the said Act.
(iii) The learned counsel appearing for the Board has seriously disputed the plea advanced by the learned counsel for the petitioners based on the interpretation of section 25(2) and (7). It is the submission of the learned counsel that there is nothing in the said section to suggest that the permission sought by the applicants is deemed to have been accorded. On the other hand, the Act prescribes various procedures and requirements to renew the consent. Therefore, question of deemed consent does not arise at all. On the other hand, the material on record shows that during the interregnum period from 01.07.2013 to 19.08.2013, the petitioners have been running the Hotel without consent and therefore a clear case for prosecution for the offence under section 25 of the Water Act, 1974 is made out and hence, there is no ground to quash the impugned proceedings.
(iv) In support of his arguments, learned counsel for the respondent has placed reliance on the observation of the Hon’ble Supreme Court of India in U.P. POLLUTION CONTROL BOARD vs. MOHAN MEAKINS LTD., & Others in (2000)3 SCC 745, with reference to paragraph No.13 wherein it is held, The Courts will share the parliamentary concern on the escalating pollution level of our environment. Those who discharge noxious polluting effluents into streams may be unconcerned about the enormity of the injury which it inflicts on the public health at large, the irreparable impairment it causes on the aquatic organisms, the deleteriousness it imposes on the life and health of animals. So the courts should not deal with the prosecution for offences under the Act in a casual or routine manner. Parliamentary concern in the matter is adequately reflected in strengthening the measures prescribed by the statute. The court has no justification for ignoring the seriousness of the subject.
7. Considered the rival contentions in the light of the documents and the provisions of law relied on by the respective parties.
(a) Firstly, action is sought against the petitioners for operating the Sewage Treatment Plant without the requisite consent under section 25 of the Water Act 1974. Section 25 of the Water Act 1974 reads as under:-
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 of 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 form, contain such particulars and shall be accompanied by the 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 section 25, 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 and 30-
(a) The expression “new or altered outlet” means any 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;
(b) 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 of 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.
(b) A plain reading of the sub-clause (a) of section 25 indicates that no establishment or industry could be established or operated without the requisite consent under section 25 of the said Act. In the instant case, it is not in dispute that the petitioners - Hotel was accorded the consent under section 25 of the Water Act 1974 which was valid till 30.06.2013. It is also a matter of record that an application for renewal of the said consent was submitted by the petitioner No.1 only on 19.08.2013. Violation of section 25 of the Water Act, 1974 is made an offence punishable under Section 44 of the Water Act, 1974. Undisputedly, in the instant case, no sanction was accorded in favour of the petitioners to operate the said hotel with effect from 01.07.2013.
(c) The contention of the learned counsel for the petitioners that on account of pendency of the application for renewal of the consent, there is a deemed consent under section 25(7) of the Water Act, 1974 cannot be accepted. Section 25(4) of the Water Act 1974 deals with circumstances in which the Board may grant or refuse consent. It is only sub-clause (7) of section 25 provides for deemed consent after expiry of period of four months from making of an application. In the instant case, undisputedly, the application was not submitted by the petitioners during the validity of the consent. The application itself having been submitted more than 1½ months after the expiry of the consent, the benefit of the said clause could be availed by the petitioners only after 18.12.2013. During the interregnum, there is a clear violation of section 25 of the Water Act 1974. The inspection report relied on by the complainant indicates that, as on the date of the inspection of the said hotel i.e., on 5/6.12.2013, the petitioners were found operating the hotel without the necessary consent and hence, in my view, the complainant has made out a clear case for prosecution of the petitioners for violation of provisions of section 25 of the Water Act, 1974, punishable under section 44 of the said Act. Nowhere in the petition, the petitioners have taken up a plea that the hotel was not in operation subsequent to 01.07.2013. Therefore, the contention of the petitioners that by virtue of the deemed permission, the petitioners were entitled to carry on the operation without the consent as required under section 25 of the Water Act, 1974 cannot be accepted.
8. Coming to the charges under the provisions of the Air Act, 1981 are concerned, the specific accusations against the petitioners are that, at the time of inspection, the petitioners were found generating noise level exceeding the standard prescribed in the consent letter. A bare perusal of the consent letter indicates that the petitioners were required to ensure the ambience noise level within its premises and it should not exceed the limits prescribed in Annexure-I appended to the consent i.e., the noise level should not exceed 65 dB(A) Leq. and 55 dB(A) Leq. during day time and night time respectively.
9. There is no serious dispute that the consent was accorded to the petitioners to run commercial activities in the premises. The annexure appended to the consent also stipulates noise level at 65 dB(A) Leq. during day time and 55 dB(A) Leq. during night time. The said limit is also permissible as per the notification issued by the Ministry of Environment and Forest. As such, no case is made out by the Board for prosecution of the petitioners for the offences under section 22 of the Air Act, 1981 punishable under section 37 of the Air Act, 1981.
10. Though there are allegations in the complaint that the said Hotel was being run without requisite consent under section 25 of the Water Act, 1974 and Section 22 of the Air Act, which are punishable under Section 43 of the Water Act, 1974 and Section 37 of Air Act, 1981, unfortunately, the learned Magistrate has not taken cognizance of any of these offences. The said order indicate that the learned Magistrate has not applied his mind to the facts of the case and has directed registration of the case without taking cognizance of any of the above offences. Therefore, to this extent the matters require to be remitted to the trial court, to reconsider the matters afresh in the light of the allegations made in the complaint and to determine as to the offences committed by the petitioners under the relevant Acts.
For the said purpose, the petitions are allowed-in-part.
The order of taking cognizance by the learned Magistrate dated 05.01.2015 in C.C. No.3/2015 on the file of learned Metropolitan Magistrate, Traffic Court, Bengaluru is quashed and the matter is remitted to the learned Magistrate to reconsider the matter afresh from the stage of taking cognizance. Parties are at liberty to produce any fresh material in their possession in respect of their respective cases so that the court can take them into consideration while forming an opinion so as to take cognizance of the offences, if any, in the matter. All other contentions are kept open.
Sd/- JUDGE Bss/mn/-