IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3127 OF 2017 C/W CRIMINAL PETITION NO.2165 OF 2017 CRIMINAL PETITION NO.2252 OF 2017 IN CRIMINAL PETITION NO.3127 OF 2017 BETWEEN:
1. S KRISHNAPPA S/O SIVANAPPA AGED ABOUT 61 YEARS RETIRED ENGINEER IN CHIEF, BWSSB R/A NO.34, 6TH MAIN ANJANEYA NAGARA BANASHANKARI 3RD STAGE BENGALURU-80 2. SRI N NARASIMHA MURTHY S/OI NARASIMHAIAH AGED ABOUT 60 YEARS RETIRED ENGINEER, BWSSB R/A D 54, 4TH CROSS BCC LAYOUT BANGALORE CITY CORPORATION VIJAYANAGAR II STAGE BENGALURU-40 (BY SRI: MONESH KUMAR K B, ADVOCATE) ... PETITIONERS AND THE KARNATAKA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS ENVIRONMENT OFFICER SRI C SIDDARAMAIAH S/O CHANNABASAVAIAH REGIONAL OFFICE-BOMMNAHALLI III FLOOR, NISARGA BHAVAN THIMMAIAH ROAD SHIVANAGAR BENGALURU-560010 ... RESPONDENT (BY SRI: JEEVAN J NEERALGI, ADVOCATE) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT AND THE ORDER OF TAKING COGNIZANCE BY THE LEARNED MAGISTRATE DATED 6.07.2015 AND CONSEQUENTLY TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.30236/2015 PENDING ON THE FILE OF V A.C.M.M., BANGALORE ON THE COMPLAINT FILED BY THE RESPONDENT FOR ALLEGED COMMISSION OF OFFENCES U/S 24 AND 25 OF THE WATER ACT AND PUNISHABLE UNDER SECTIONS 44 AND 45 OF THE WATER ACT AS AGAINST THE PETITIONERS.
IN CRIMINAL PETITION NO.2165 OF 2017 BETWEEN:
BANGALORE WATER SUPPLY & SEWERAGE BOARD CAUVERY BHAVAN, KEMPEGOWDA ROAD BENGALURU - 560 001.
REP BY ITS CHAIRMAN SRI TUSHAR GIRINATH AGE 48 YEARS, S/O KASHINATH.
(BY SRI: MONESH KUMAR K B, ADVOCATE) ... PETITIONER AND THE KARNATAKA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS ENVIRONMENT OFFICER, SRI C. SIDDARAMIAH, S/O CHANNABASAVIAH, REGIONAL OFFICE - BOMMANAHALLI III FLOOR, NISARGA BHAVAN, THIMMAIAH ROAD, SHIVANAGAR, BENGALURU - 560 010.
... RESPONDENT (BY SRI: JEEVAN J NEERALGI, ADVOCATE) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT AND THE ORDER OF TAKING COGNIZANCE BY THE MAGISTRATE DATED 06.07.2015 AND CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.30236/2015 PENDING ON THE FILE OF V ADDL.C.M.M., BANGALORE ON THE COMPLAINT FILED BY THE RESPONDENT FOR ALLEGED COMMISSION OF THE OFFENCE PUNISHABLE UNDER SECTIONS 24 AND 25 OF THE WATER ACT AND SECTIONS 44 AND 45 OF THE WATER ACT.
IN CRIMINAL PETITION NO.2252 OF 2017 BETWEEN:
SRI ANJUM PARWEZ S/O MD. SHAMSUDDIN AGED ABOUT 48 YEARS, PRESENTLY THE CHAIRMAN KRISHNA BHAGYA JAL NIGAMA K.R. CIRCLE, BENGALURU 560001 ALSO SERVED AS FORMER CHAIRMAN BWSSB K.G. ROAD, BENGALURU 560 009.
(BY SRI: MONESH KUMAR K B, ADVOCATE) ... PETITIONER AND THE KARNATAKA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS ENVIRONMENT OFFICER, SRI C. SIDDARAMIAH, S/O CHANNABASAVIAH, REGIONAL OFFICE - BOMMANAHALLI III FLOOR, NISARGA BHAVAN, THIMMAIAH ROAD, SHIVANAGAR, BENGALURU - 560 010.
... RESPONDENT (BY SRI: JEEVAN J NEERALGI, ADVOCATE) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE COMPLAINT AND THE ORDER OF TAKING COGNIZANCE BY THE LEARNED MAGISTRATE DATED 06.07.2015 AND CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.30236/2015 PENDING ON THE FILE OF V ADDL.C.M.M., BANGALORE ON THE COMPLAINT FILED BY THE RESPONDENT FOR ALLEGED COMMISSION OF THE OFFENCE PUNISHABLE UNDER SECTIONS 24 AND 25 OF THE WATER ACT AND SEC. 44 AND 45 OF THE WATER ACT.
THESE CRIMINAL PETITIONS ARE COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Accused Nos.1, 3, 5 & 8 in C.C.No.30236/2015 have filed these petitions seeking to quash the entire proceedings in C.C.No.30236/2015 on the file of V Addl. C.M.M., Bangalore, for the alleged offences punishable under sections 24 and 25 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the “Water Act”).
2(i) The Karnataka State Pollution Control Board (“KSPC Board” for short) – respondent herein filed a complaint under section 200 Cr.P.C., seeking action against BWSSB namely petitioner in Crl.P.No.2165/2017 (accused No.1), petitioner in Crl.P.No.2252/2017 (accused No.3) and petitioners in Crl.P.No.3127/2017 (accused Nos.5 and 8), erstwhile officer of BWSSB (accused No.2) and officers of BWSSB (accused Nos.4, 6, 7, 9 to 13) on the ground that, pursuant to the various complaints received by the respondent on pollution of Bangalore lakes due to discharge of untreated sewage resulting in pollution of surface and ground water adversely affecting the public health, Arekere lake, Madiwala lake and surrounding areas were inspected on 23.01.2014 and it was observed that sewage and sullage from Arakere ward, Belakahalli ward and other residential areas was being discharged directly into Arekere and Madiwala lake through storm water drain resulting in pollution of lake water and the solid wastes like plastic covers, plastic bottles and debris thrown in the storm water drain had choked the drains obstructing the free flow of water, creating stagnation of sewage in the drains, near culverts and bridges, resulting in foul smell and mosquito breeding place, which may affect the health of human life.
(ii) It is alleged that the complainant Board issued a notice to the accused requesting them to take immediate steps to stop the discharge of sewage into all the lakes of Bommonahalli Zone and report compliance, but the petitioners and other accused persons failed to prevent the discharge of sewage into the aforesaid lakes and failed to submit compliance report in response to the notice dated 28.01.2014. Hence complainant Board conducted a personal hearing on 12.3.2014 at the Board and issued directions to all the concerned agencies including BWSSB to stop illegal sewage entry from various sources like residences/apartments/layouts/townships etc., and to undertake cleaning up of water bodies. The BWSSB authorities failed to reply to the notice of direction issued on 20.03.2014.
(iii) On 29.4.2014 the Deputy Environmental Officer of Bommanahalli Region, Bangalore, inspected Arekere lake, Hulimavu lake, Madivala lake and storm water drains surrounding the above lakes along with officials of BWSSB and BBMP and noticed that BWSSB had not taken steps to prevent entry of sewage and sullage effluent to Arakere Lake, Hulimavu Lake, Bellandur Lake. The analysis report of the samples of sewage collected from the above lakes revealed that the parameters such as BOD, COD and suspended solids exceed the general discharge standards. Further it is stated that a meeting was also held in the presence the Chairman of complainant Board on 19.6.2014 along with the officers of BWSSB and pursuant to the decision taken therein, a notification was issued forming Watchdog committee for all the lakes in the BBMP area for lake protection and conservation.
(iv) The Watchdog committee convened various meetings to review the compliance made to the proceedings of meeting held on 11.08.2014 and once again it was observed that no action was taken on the proceedings of the said meeting and it was decided that the KSPC Board shall initiate action against the BWSSB for not cleaning the water hyacinth in the oxidation ponds of STP and also for failing to control entry of sewage into the lakes as committed before. Contending that the above lapses clearly showed that the accused and its officers concerned in the day-to-day affairs have committed offences contravening the provisions of Sections 24 and 25 of the Water (Prevention and Control of Pollution) Act, 1974, the complainant sought prosecution of the petitioners and other accused persons under sections 43 and 44 of the Water Act.
3. Learned Magistrate took cognizance of the offences and issued summons to the petitioners. The impugned order of summons and initiation of proceedings against the petitioners have been questioned in this batch of petitions on the following grounds namely:-
(i) The order taking cognizance and issuance of summons by the Magistrate is beyond the facts and circumstances of the case and the law applicable to the facts of the case;
(ii) Petitioners have discharged their duties in consonance with the duties and responsibilities entrusted to them under the Act;
(iii) Petitioners being the State officials who have performed their duties in the discharge of their official duties, learned Magistrate was bound by section 197 of Cr.P.C., not to take cognizance of the above offences without the previous sanction of the competent authority. The complaint against the Government Board is not preceded with a sanction;
(iv) The allegations made in the complaint pertain to flow of sewage through the storm water drain. Primarily control of storm water drains is a duty vested with BBMP and BWSSB;
(v) The officers of BWSSB have no power to exercise any control over the storm water drains or flow of sewage through the same;
(vi) The sewage through the storm water drains are let in by illegal layouts, apartments, high-rise buildings and since pollution had been caused by private agencies, as per the dictum laid down by the Hon’ble Supreme Court, “polluter alone” is liable to be prosecuted;
(vii) BWSSB has not collected sewage or permitted the same to flow through storm water drain and further into Madivala lake or Arekere lake and hence, question of petitioners having committed any offence under section 24/25 of the Water Act does not arise;
(viii) Petitioners cannot be held liable for non- implementation of any projects envisaged by the State even if it resulted in violation of any rule of law;
(ix) Petitioners cannot be held vicariously liable for the acts, commission or omission of the Board;
(x) The order of taking cognizance does not indicate application of mind by the learned Magistrate. Likewise, order of issuance of process also does not indicate subjective satisfaction about the sufficient ground for issue of process;
(xi) Section 48 of the Water Act creates legal bar on instituting a complaint against the petitioners as alleged offences were committed without their knowledge;
(xii) The original sewage collection of BWSSB was restricted to an extent of 245 sq.kms., consisting of the core area of Bengaluru. The problem has arisen due to flow of sewerage through the storm water drains and other sources directly into the lakes from the erstwhile CMC area and 110 villages which were not at all sewer networked. Hence, holding BWSSB for the situation beyond the control of BWSSB is unsustainable;
(xiii) In order to attract provisions of sections 24 and 25 of the Water Act, the accused should have knowingly cause or permit any poisonous, noxious or polluting matter directly into any stream or well. In the absence of any material to show that the petitioners herein have knowingly caused or permitted discharge of the pollutants in the aforesaid lakes, action initiated against petitioners is impermissible and unsustainable;
(xiv) Respondent has failed to exercise power under section 17 of the Water Act by insisting the erstwhile CMC to insist on sewerage disposal mechanism and failed to prosecute the structures which were sanctioned by the erstwhile CMC which have resorted to letting untreated sewerage into the storm water drains; and (xv) Respondent has ample powers as contemplated under section 18 of the Water Act to issue necessary directions and had more than ample powers as contemplated under section 23 of the Water Act to inspect the polluting CMC areas and to prevent the situation. Respondent having failed to perform its duties, cannot be permitted to prosecute the petitioners for its lapse.
4. Learned Senior Counsel appearing for the respective petitioners has argued in line with the above contentions and has emphasized that the prosecution of petitioners without prior sanction under section 197 Cr.P.C. and section 125 of Bangalore Water Supply and Sewerage Act, 1964 (“BWSS Act” for short) is illegal, untenable and impermissible. Learned Magistrate has taken cognizance of the penal provisions, but not of alleged violation under sections 24 and 25 of the Act, as such, learned Magistrate had no jurisdiction to proceed against the petitioners. The allegations made in the complaint, if read in entirety, would disclose that the alleged offences were committed by the Department. Petitioners herein were not holding any responsible position or positions in the Department as on the date of alleged commission of offences. Hence, implication of present petitioners for the alleged offences is wholly illegal and is liable to be quashed.
5. Placing reliance on the decision of the Hon’ble Supreme court in M.C.Mehta vs. Kamal Nath and Others, (2002) 3 SCC 653, learned Senior Counsel has emphasized that the averments made in the complaint and the material produced in support thereof clearly go to show that the pollutants are being discharged into the storm water drains by the illegal layouts, apartments and high-rise buildings and not by petitioners or by the Board. Complainant himself is empowered under the Act to take action against the persons and agencies which cause pollution of water bodies. Hon’ble Supreme Court has laid down “Polluter Pays” principle and in view of the said proposition of law, once the activity carried on is found hazardous or inherently dangerous, only the person carrying on such activity is liable to make good the loss caused to any other person by his activity irrespective of the fact whether he took reasonable care while carrying on his activity. In view of the above position, the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental of the damaged environment is on the polluter and under the said circumstances, the prosecution instituted against the petitioners is wholly illegal and contrary to the provisions of BWSSB Act, 1964 as well as Water Act, 1974.
6(i) Meeting this argument, learned counsel for respondent has placed reliance on the decision of the Hon’ble Supreme Court in V.C.CHINNAPPA GOUDAR vs. KARNATAKA STATE POLLUTION CONTROL BOARD & Another in Criminal Appeal No.755/2010 dated 10.3.2015 and submitted that the controversy relating to requirement of sanction for prosecution of violation of provisions of the Water Act is set at rest by the Hon’ble Apex Court in the above decision and it is held that, There is no specific provisions providing for any sanction to be secured for proceeding against a public servant under the 1974 Act. In the light of the statutory prescription contained in section 48, there is no scope for invoking section 197 Cr.P.C., even though the accused are public servants.”
(ii) Further, referring to section 125 of BWSS Act, learned counsel emphasized that, in view of specific allegations made in the complaint, petitioners herein being the public servants, have failed to discharge the obligation cast on them under the BWSS Act. Therefore, the provision of section 125 of BWSS Act is also not applicable to the facts of the case. In other words, it is the submission of the learned counsel for respondent, that the requirement of previous sanction of the Board under section 125 of BWSS Act is contemplated only when the Board or any of its officers are sought to be prosecuted in respect of the act done by them in good faith or intended to be done under the BWSS Act or any rule or regulation made thereunder. Since the petitioners are facing accusations of failure to prevent the pollutants entering into the lakes and water bodies, requirement of section 125 of BWSS Act is also not required to be complied in the instant set of facts.
(iii) Further, referring to sections 63, 64, 65, 75A, 111 and 113 of BWSS Act, learned counsel emphasized that, in view of above provisions, all public sewers and all sewage disposal works whether constructed out of the municipal fund of the Corporation or BBMP, vest in the BWSSB. Control of sewers and sewage disposal work is also vested with the BWSSB and the BWSSB is also empowered to enforce the rules and regulations framed under the Act and under the said circumstances, BWSSB and its officials having failed to prevent discharge of sewage and sullage effluent into lakes, in spite of directions issued by the complainant/KSPC Board, accused No.1 –BWSSB and its officers are liable to face prosecution for violation of sections 24 and 25 of the Water Act and thus, sought to dismiss the petitions.
7. I have bestowed my careful thought to the rival contentions urged at the Bar with reference to the relevant provisions of law and the decisions relied on by the respective counsels.
8. The material allegations leveled against the petitioners are that accused No.1 BWSSB and its officials failed to prevent pollution of Arekere lake, Hulimavu lake, Madivala lake and storm water drains surrounding the above lakes. In the light of these allegations, the first question that arises for consideration is:
Whether failure of BWSSB to prevent the pollutants to enter into the lakes would constitute violation of sections 24 and 25 of the Water Act?
9. Sections 24 and 25 of the Water Act deals with the prohibition and restriction on the use of stream or well for disposal of polluting matter, etc. It reads thus:-
24. Prohibition on use of stream or well for disposal of polluting matter, etc.— (1) Subject to the provisions of this section,— a) 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 1[stream or well or sewer or on land]; or b) 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 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 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 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 authorised 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.
10. Laying emphasis on the expression used in section 24 that, “no person shall knowingly cause or permit any poisonous, noxious or polluting matter determining in accordance with such standard as may be laid down by the State Board to enter into any stream or well or sewer or on land”, it is argued, that petitioners have not caused or permitted any such pollutants to enter into the lakes and there being no such allegations in the complaint, the invocation of provisions of sections 24 and 25 of the Water Act is not tenable. In other words, the contention of learned Senior Counsel appearing for petitioners is that, mere failure to prevent the pollution of water bodies does not fall within the mischief of section 24 or section 25 of the Water Act. Learned counsel has pointed out that respondent/complainant itself has admitted in the complaint that illegal sewage was let into the water bodies by various other sources like residents, apartments, layouts, townships, industries etc. Referring to section 17 of the Water Act, learned Senior Counsel has emphasized that, in view of the said provision, inspection of sewage or trade effluents and taking action for prevention, control or abatement of discharges of waste into streams or wells under section 17(1)(l) of the Water Act was the responsibility of the respondent - KSPC Board. The respondent – KSPC Board cannot shift the burden on accused No.1 – BWSSB. The respondent – KSPC Board having failed to prevent the pollution of the aforesaid lakes, is not entitled to proceed against BWSSB.
11. This argument, in my view, is misconceived and contrary to the scheme of BWSS Act as well as the provisions of Water Act. A perusal of the various provisions referred to by learned counsel for respondent especially the provisions of sections 63, 64, 65, 70 and 75 of the BWSS Act indicates that all sewers and ventilation shafts vest in accused No.1 –Board. In this regard, it may be relevant to refer to sections 63, 64, 65, 70 and 75 of BWSS Act. These provisions are extracted herebelow:-
63. Vesting of sewers, etc, in Board-(1) On and from the date of coming into force of this Chapter, all public sewers, all sewers in, alongside or under any public street within the Bangalore Metropolitan Area, and all sewage disposal works whether constructed out of the municipal fund of the Corporation of the [Bruhut Bangalore Mahanagara] or otherwise, and all works, materials and things appertaining thereto, shall vest in the Board.
(2) All public and other sewers which are vested in the Board are hereafter in this Act referred to as Board sewers.
(3) For the purposes of enlarging, deepening or otherwise repairing or maintaining any such sewer or sewage disposal work so much of the sub-soil appertaining thereto as may be necessary for the said purpose shall be deemed also to vest in the Board.
(4) All sewers and ventilation-shafts, pipes and all appliances and fittings connected with the sewerage works constructed, erected or set up out of the municipal fund of the Corporation in or upon premises not belonging to the Corporation whether-
(a) before or after the commencement of this Act, and (b) for the use of the owner or occupier of such premises or not, shall, unless the [Bruhat Bangalore Mahanagara] has otherwise determined, or does at any time otherwise determine, vest in the Board.
64. Control of sewers and sewage disposal works.- (1) All Government sewers, all sewage disposal works and all works, materials and things appertaining thereto shall be under the control of the Board.
(2) The Board shall maintain and keep in repair all Board sewers and sewage disposal works and shall construct as many new drains and sewage disposal works as may from time to time be necessary for effectual sewerage and sewage disposal of the Bangalore Metropolitan Area.
65. Certain matters not to be passed into Board sewers. (1) No person shall throw, empty, or turn into any Board sewer or into any drain or sewer communicating with a Board sewer,-
a. any matter likely to injure the sewer or to interfere with the free flow of its contents, or to affect prejudicially the treatment and disposal of its contents; or b. any chemical, refuse or waste steam, or any liquid of [such temperature as may be specified by notification by the Board], being refuse or steam which, or a liquid which when so heated, is, either alone or in combination with the contents of the sewer, dangerous, or the cause of a nuisance, or prejudicial to health; or c. any dangerous petroleum.
(2) In this section, the expression "dangerous petroleum" has the same meaning as in the Petroleum Act, 1934 (Central Act 30 of 1934).
70. Power of Board to close or limit the use of Private drains in certain cases.- Where a drain connecting any premises with a Board sewer is sufficient for the effectual drainage of such premises and is otherwise unobjectionable but is not, in the opinion of the Board adapted to the general system of sewerage in the Bangalore Metropolitan Area, it may, by written notice addressed to the owner of the premises, direct, (a) that such drain be closed, discontinued or destroyed and that any work necessary for that purpose be done; or (b) that such drain shall, from such date as may be specified in the notice in this behalf, be used for filth and polluted water only or for rain water and unpolluted sub-soil water only:
Provided that, (i) no drain may be closed, discontinued or destroyed by the Board under clause (a) except on condition of its providing another drain equally effectual for the drainage of the premises and communicating with any Board sewer which it thinks fit; and (ii) the expenses of the construction of any drain so provided by the Board and of any work done under clause (a) shall be borne by the Board.
75. Connection with sewers not to be made without permission. Without the written permission of the Board, no person shall, for any purpose whatsoever, at any time make or cause to be made any connection or communication with any sewer referred to in section 63 constructed or maintained by, or vested in, the Board.
12. In the backdrop of the above provisions, if the averments made in the complaint and the allegations made therein are perused, the specific case of the respondent – KSPC Board is that, accused No.1 – Board and its officials have failed to discharge the obligation cast on them under the various provisions of the Act. Undeniably, by virtue of the above provisions, all drains and sewers having vested with the BWSSB and there being clear allegations that the polluting material having been let into the lakes through these sewers or drains, even though the pollutants are let into the drains by various other agencies like industries, layouts etc., yet on account of failure of BWSSB to prevent the flow of pollutants into the drains, it has to be held that accused No.1 –BWSSB has knowingly permitted the pollutants to enter into the lakes and other water bodies thereby contravening the provisions of sections 24 and 25 of the Water Act. As a result, the contention urged by the learned counsel for petitioners that accused No.1 – BWSSB has not caused or permitted pollutants to enter into the lakes and therefore it is not liable for prosecution under sections 24 and 25 of the Water Act is liable to be rejected and it is accordingly rejected.
13. The next question that follows from the above conclusion is, On account of failure of accused No.1 – BWSSB to prevent the pollutants to enter into the lakes and water bodies, whether its officials namely accused No.2 to 13 are liable to face prosecution for the above contraventions?
14. In this regard, it is pertinent to note that accused No.3 is prosecuted as the Present Chairman of the accused No.1 – BWSSB. Accused Nos.4 to 7 are prosecuted in their capacity as Chief Engineers (Projects), accused No.8 as Additional Chief Engineer (Projects), accused No.9 as Executive Engineer, accused Nos.10, 11 and 13 as Assistant Executive Engineers and accused No.12 as Executive Engineer of accused No.1 – Board. The only allegation made against accused Nos.2 to 13 in the charge sheet is that, “accused and its officers concerned in the day-to-day affairs have committed an offence contravening the provisions of Section 24 and 25 of the Water (Prevention and Control of Pollution) Act, 1974.” This averment, in my view, is not sufficient to prosecute the accused Nos.2 to 13 for the alleged contravention of sections 24 and 25 of the Water Act punishable under sections 43 and 44 of the Water Act.
15. Undisputedly, the statute does not attract vicarious liability on the officials of the Board under the Water Act. In this context, it may be relevant to refer to section 48 of the Water Act which deals with the offences by Government Department. The section reads as under:
48. Offences by Government Departments.- Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.”
From the above provision, it is clear that where any Department of Government is accused of an offence under the Water Act, only the Head of the Department shall be liable to be prosecuted and punished accordingly. Therefore it naturally follows that in the absence of any specific provision fastening vicarious liability on all the officials of the Government Department, prosecution instituted against accused Nos.2 to 13 cannot be sustained.
16. The law on this point is now well settled. It may be useful to refer to a recent decision of the Hon’ble Supreme Court in SHIV KUMAR JATIA vs. STATE OF NCT OF DELHI in Criminal Appeal No.1263/2019 (arising out of S.L.P.(Crl.) No.8008/2018 decided on 23.08.2019. In the said case, a case was registered for the offence under sections 336 and 338 read with 32 of IPC based on the information that one Gaurav Rishi got admitted in Fortis Hospital, Vasant Kunj, vide MLC No.2240 of 2013 with the alleged history of fall from stairs. On investigation, it was found that the injured Gaurav Rishi fell from the terrace of 6th floor to 4th floor of the hotel i.e., Hyatt Regency. The case of the prosecution was that terrace was dark and there was no light on the terrace and hotel staff did not stop them from going there. Precisely the allegation was that there was a lapse on the part of hotel management in taking safety measures for the guests who were allowed to terrace area. The Trial Court having issued summons to the appellants, the same was sought to be quashed before the High Court of Delhi under section 482 of Cr.P.C. In the said proceedings, the High Court considered the case as if the investigation was pending and proceeded on the basis that, to attract the ingredients of section 336 of IPC, an act done rashly and negligently, to endanger human life or personal safety are essential and to attract section 338 of IPC, in addition to the above said acts, additional ingredients of grievous hurt should be alleged and proved. The appellant in the above case was sued on the ground that he was holding the position of the Managing Director. In the absence of any specific allegations of negligence with criminal intent, in that context, the Hon’ble Supreme Court in paras 27 and 29 of the above judgment has observed thus:-
27. The liability of the Directors/the controlling authorities of company, in a corporate criminal liability is elaborately considered by this Court in the case of Sunil Bharti Mittal. In the aforesaid case, while considering the circumstances when Director/person in charge of the affairs of the company can also be prosecuted, when the company is an accused person, this Court has held, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. At the same time it is observed that it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the Statute specifically provides for. It is further held by this Court, an individual who has perpetrated the commission of an offence on behalf of the company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Further it is also held that an individual can be implicated in those cases where statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.
29. By applying the ratio laid down by this Court in the case of Sunil Bharti Mittal it is clear that an individual either as a Director or a Managing Director or Chairman of the company can be made as accused, along with the company, only if there is sufficient material to prove his active role coupled with the criminal intent. Further the criminal intent alleged must have direct nexus with the accused. Further in the case of Maksud Saiyed vs. State of Gujarat & Ors., this court has examined the vicarious liability of Directors for the charges leveled against the Company. In the aforesaid judgment this Court has held that, the Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the company, when the accused is a Company. It is held that vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the Statute. It is further held that Statutes indisputably must provide fixing such vicarious liability. It is also held that, even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.
17. The principles laid down in the above decision, in my view, squarely apply to the facts of the case. In the absence of clear averments that accused Nos.2 to 13 were individually liable and responsible for prevention of pollution from entering into the public lakes, accused Nos.2 to 13 could not have been prosecuted solely on the ground that they were holding different positions in the accused No.1 – BWSSB. In that view of the matter, prosecution initiated against accused Nos.3, 5 and 8, in my view, is wholly illegal and opposed to the settled cannons of justice and cannot be permitted to continue. To this extent, petitions deserve to be allowed. Accordingly, I proceed to pass the following:-
ORDER (i) Criminal Petition No.2165/2017 filed by accused No.1 – Bangalore Water Supply and Sewerage Board is dismissed.
(ii) Criminal Petition Nos.3127/2017 filed by petitioners/accused Nos.5 and 8 and Criminal Petition No.2252/2017 filed by accused No.3 are allowed. Proceedings in C.C.No.30236/2015 pending on the file of V ACMM, Bengaluru are quashed insofar as accused Nos. 3, 5 and 8 are concerned.
Sd/- JUDGE Bss