IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1210 OF 2013 C/W CRIMINAL PETITION NO.1211 OF 2013 CRIMINAL PETITION NO.1212 OF 2013 CRIMINAL PETITION NO.1213 OF 2013 CRIMINAL PETITION NO.1214 OF 2013 CRIMINAL PETITION NO.1215 OF 2013 CRIMINAL PETITION NO.1216 OF 2013 CRIMINAL PETITION NO.1217 OF 2013 CRIMINAL PETITION NO.1218 OF 2013 CRIMINAL PETITION NO.1219 OF 2013 BETWEEN 1. M/S. SOBHA DEVELOPERS LTD HAVING ITS REGISTERED OFFICE AT “SOBHA”, SARJAPUR-MARTHAHALLI (ORR) DEVARABISANAHALLI, BELLANDUR POST BANGALORE 560 103 REP BY N.B. ASHOK KUMAR VICE PRESIDENT 2. SRI N B ASHOK KUMAR VICE PRESIDENT (LEGAL AND LAND AFFAIRS) SOBHA DEVELOPERS LIMITED, ”SOBHA”, SARJAPUR-MARTHAHALLI (ORR) DEVARABISANAHALLI, BELLANDUR POST, BANGALORE 560 103 ... PETITIONERS (COMMON) (BY SRI: C.V.NAGESH, SENIOR COUNSEL A/W K. RAGHAVENDRA, ADVOCATE) AND M/S. KARNATAKA STATE POLLUTION CONTROL BOARD REGIONAL OFFICE, BANGALORE EAST 2, NISARGA BHAVAN, 3RD FLOOR THIMMAIAH ROAD, NO 7, ‘D’ MAIN ROAD, SHIVANAGARA OPP PUSHPANJALI THEATRE BENGALURU-560010 REP BY ITS DEPUTY ENVIRONMENT OFFICER SRI K M RAMESH (BY SRI: D NAGARAJ, ADVOCATE) IN CRL.P NO.1210/2013 ... RESPONDENT (COMMON) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2012 PASSED BY THE VI A.C.M.M., BANGALORE IN C.C.NO.15916/2012 DIRECTING REGISTRATION OF THE CASE AGAINST THE PETTIONERS PRESUMABLY FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 44 AND 49 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
IN CRL.P NO.1211/2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2012 PASSED IN C.C.NO.15917/2012 PENDING BEFORE THE VI A.C.M.M., BANGALORE DIRECTING REGISTRATION OF THE CASE AGAINST THE PETITIONERS, PRESUMABLY, FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 44 AND 49 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
IN CRL.P.NO.1212/2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2012 PASSED IN C.C.NO.15919/2012 PENDING BEFORE THE VI A.C.M.M., BANGALORE DIRECTING REGISTRATION OF THE CASE AGAINST THE PETITIONERS, PRESUMABLY, FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 44 AND 49 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
IN CRL.P.NO.1213/2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2012 PASSED IN C.C.NO.15920/2012 PENDING BEFORE THE VI A.C.M.M., BANGALORE DIRECTING REGISTRATION OF THE CASE AGAINST THE PETITIONERS, PRESUMABLY, FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 44 AND 49 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
IN CRL.P NO.1214/2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2012 PASSED IN C.C.NO.15923/2012 PENDING BEFORE THE VI A.C.M.M., BANGALORE DIRECTING REGISTRATION OF THE CASE AGAINST THE PETITIONERS, PRESUMABLY, FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 44 AND 49 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
IN CRL.P NO.1215/2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2012 PASSED IN C.C.NO.15924/2012 PENDING BEFORE THE VI A.C.M.M., BANGALORE DIRECTING REGISTRATION OF THE CASE AGAINST THE PETITIONERS, PRESUMABLY, FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 44 AND 49 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
IN CRL.P NO.1216/2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2012 PASSED IN C.C.NO.15925/2012 PENDING BEFORE THE VI A.C.M.M., BANGALORE DIRECTING REGISTRATION OF THE CASE AGAINST THE PETITIONERS, PRESUMABLY, FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 44 AND 49 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
IN CRL.P NO.1217/2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2012 PASSED IN C.C.NO.15918/2012 PENDING BEFORE THE VI A.C.M.M., BANGALORE DIRECTING REGISTRATION OF THE CASE AGAINST THE PETITIONERS, PRESUMABLY, FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 44 AND 49 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
IN CRL.P NO.1218/2013 THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2012 PASSED IN C.C.NO.15921/2012 PENDING BEFORE THE VI A.C.M.M., BANGALORE DIRECTING REGISTRATION OF THE CASE AGAINST THE PETITIONERS, PRESUMABLY, FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 44 AND 49 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
IN CRL.P NO.1219/2013 THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 05.07.2012 PASSED IN C.C.NO.15922/2012 PENDING BEFORE THE VI A.C.M.M., BANGALORE DIRECTING REGISTRATION OF THE CASE AGAINST THE PETITIONERS, PRESUMABLY, FOR OFFENCES WHICH ARE MADE PENAL UNDER SECTIONS 44 AND 49 OF THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 AND ORDERING PROCESS AGAINST THEM FOR THEIR APPEARANCE IN THE CASE BEFORE THE COURT AND FURTHER BE PLEASED TO QUASH THE PROCEEDINGS THAT ARE BEING RECORDED IN THE CASE.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 29.01.2019 AND COMING ON FOR PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE THE FOLLOWING:-
O R D E R The petitioners have sought to quash the proceedings in C.C.Nos.15916/2012, 15917/2012, 15919/2012, 15920/2012, 15923/2012, 15924/2012, 15925/2012, 15918/2012, 15921/2012 and 15922/2012 pending on the file of VI Addl. CMM, Bengaluru for the offences punishable under sections 44 and 49 of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter called as ‘Water Act’) raising common grounds. Hence all these petitions are heard and disposed of together by this common order.
2. The allegations against the petitioners is that the petitioners have been discharging effluents without prior consent of the Karnataka State Pollution Control Board (for short ‘Board’) and the effluent sample collected and analysed by the Board, Bengaluru from the respective apartment complexes showed that the parameters of the samples were not in conformity with the prescribed standards. Hence, the respondent Board sought prosecution of the petitioners for contravention of Sections 24 and 25 of The Water (Prevention and Control of Pollution) Act, 1974(for short ‘Water Act’) punishable under Sections 44 and 49 of the Water Act.
3. On receiving the complaints, the learned Magistrate took cognizance of the offences and issued summons to the petitioners. At that stage, the petitioners have approached this Court invoking jurisdiction under Section 482 Cr.P.C. to quash the action initiated against the petitioners.
4. Learned Senior Counsel Sri. S.V. Nagesh, appearing on behalf of the petitioners has raised the following contentions:-
(i). The authorization issued to the Deputy Environmental Officer-respondent is not in accordance with Section 49 of the Water Act. The memos relied on by the respondent do not authorize the concerned officer to institute the proceedings against the petitioners. Referring to one of such memo dated 12.06.2012 in Crl.P.No.1210/2013, learned Senior counsel has emphasized that under the said memo, the Deputy Environmental Officer, Regional Office, Bengaluru was authorized to file criminal case against M/s. Sobha Inner City Technopolis Private Limited, whereas, in the cause-title of the complaint, the respondent therein is described as “M/s. Sobha Developers Limited, by name and style of M/s. Sobha Daisy Apartment. Similar description is found in the other complaints also. Since there was no authorisation to institute the cases against M/s. Sobha Developers Limited and Sri. N.B. Ashok Kumar, the proceedings initiated against the petitioners is bad in law.
(ii). Secondly, referring to the allegations made in the respective complaints, learned counsel would submit that the material allegations made therein are that the effluent samples collected and analysed by the Karnataka State Pollution Control Board Laboratory disclosed that the parameter of the samples were not in conformity with the standards. The Analysts’ reports indicate that the turbidity was more than the prescribed standard i.e., ‘5.0’, whereas as per the standard shown in the analysis report it is less than ‘2’. Further commenting on these reports, it is submitted that the said reports refer to respective apartments mentioned therein, whereas in the complaints, the accused are described as M/s. Sobha Developers Limited. Therefore these findings cannot be ascribed to the petitioners. Even the standard prescribed in those reports are contrary to the standards prescribed by the Bureau of Indian Standards, New Delhi, wherein, the required desirable limit of turbidity is prescribed at ‘5’ and the permissible limit in the absence of alternative source is prescribed at ‘10’ for drinking water. Therefore, even accepting the reports submitted by the Analysts, the same do not constitute any violation of the provision of Section 25 of the Water Act.
Learned counsel has also pointed out that even in the matter of collecting samples, the authorities have failed to comply with the procedure contemplated under Section 21. There is nothing in the complaints or the material produced before the Court to indicate that the samples collected by the Board were given to the petitioners and therefore no reliance could be have been placed on those reports.
(iii). Thirdly, he submits that as on the date of the alleged commission of the offences, M/s. Sobha Developers Limited had already transferred the apartment units contained in the respective apartment complexes to the Association of the Apartment owners by executing separate Deeds of Declaration as required under the Karnataka Apartment Ownership Act transferring all rights, title and interest of M/s. Sobha Inner City Technopolis Pvt. Ltd., Consequently, the management and affairs of the sewage treatment plant was taken over by the Association and therefore the prosecution of the petitioners for the alleged violations of Sections 24 and 25 of the Water Act are patently illegal and amount to abuse of the process of Court.
(iv). Lastly, learned counsel would submit that even the order of taking cognizance by the learned Magistrate suffer from patent error. The impugned orders indicate that the learned Magistrate has not applied his mind to the facts of the case and has mechanically taken cognizance of the offences contrary to the law laid down by the Hon’ble Supreme Court in the case of SUNIL BHARTI MITTAL vs. CENTRAL BUREAU OF INVESTIGATION reported in 2015 AIR SCW 642., Thus he prays for quashing the impugned proceedings.
5. Learned counsel appearing for the respondent namely, Karnataka State Pollution Control Board has countered each of the contentions raised by the learned counsel for the petitioners. Meeting the first contention, learned counsel appearing for the respondent-Board has referred to the office memorandum dated 08/11.03.2013, whereunder the Board had authorized the Deputy Environmental Officer/Assistant Environmental Officer to file cases on behalf of the Board in the Courts for violations under the Water Act, 1974 and the Air(Prevention and Control of Pollution) Act, 1981, after obtaining the approval from the Chairman. The approval accorded by the Chairman is also produced to show that the complaints in hand are filed by the Deputy Environmental Officer pursuant to the approval accorded by the Member Secretary, Karnataka State Pollution Control Board.
6. Regarding the second contention, the learned counsel for the respondent-Board has referred to Rule 3 of The Environment (Protection) Rules, 1986, whereunder the Board is empowered to prescribe more stringent standards from those provided in Schedule I to IV. With reference to the above Rule, it is submitted that vide memorandum dated 16.11.2007, the Board has prescribed the following parameters in respect of treated sewage for Urban reuse as under:-
Quality of treated sewage for urban reuse
7. Further referring to the notices issued to M/s. Sobha Inner City Techno Polis Private Limited, learned counsel has emphasized that the violation noted during inspection in those reports as enumerated therein are based on the parameters prescribed in the above memorandum dated 16.11.2007 and therefore no fault could be found in the findings noted in the Analyst reports produced before the Court.
8. With regard to the third contention raised by the learned counsel for the petitioners regarding the description of the petitioners is concerned, at the outset, the learned counsel has pointed out that the complaints were filed against M/s. Sobha Developers Limited by name and style of different Apartments constructed by said M/s. Sobha Developers Limited. Referring to the sale deed which is produced alongwith the memo, learned counsel has pointed out that the properties whereunder various apartment complexes are built were purchased in the name of M/s. Sobha Inner City Technopolis Private Limited. The proceedings of the Technical discussion held in respect of 11 Sobha Group of Apartments in regard to pollution of Bellandur Lake due to discharge of sewage were detailed in the said proceeding dated 20.11.2011, wherein various projects undertaken by Sobha Developers Limited are detailed as under:-
9. Learned counsel has pointed out that in the said proceedings, the following decisions were taken viz., i. M/s. Sobha Developers Limited shall maintain the STP and other utilities for a minimum period of five years before handing over of apartment to residents association.
ii. M/s. Sobha Developers Limited shall obtain prior NOC from the Board and shall formally handover the apartment to residents association, after M.O.U. with clear terms of handing over.
iii. M/s. Sobha Developers Limited was directed to conduct third party aid to ensure full compliance of CFE and CFO conditions before handing over of apartment to resident association, so as to efficiently operate and maintain STP.
iv. All their STPs in the City shall be subjected to environmental audit and report shall be submitted within 15 days.
v. Resident Associations were informed to get their STP operators trained at EMPRI.
vi. M/s. Sobha Developers Limited shall furnish a compliance report on the above, within 25 days.
vii. It was decided to hold both builder and Association responsible till the facility is legally handed over to Association duly complying with all/formalities.
viii. Regional Officer was directed to monitor the progress of the compliance in all apartments and to report the same. He should repeatedly (once a month) collect samples from STP’s and submit compliance report.
10. Thus it is the submission of the learned counsel for the respondent Board that all the apartments having been constructed by M/s. Sobha Developers Limited were required to ensure full compliance of CFE(Consent for Establishment) and CFO(Consent for Operation) conditions before handing over the apartments to Residents’ Association, so as to efficiently operate and maintain STP. In terms of the said discussion, M/s. Sobha Developers Limited was required to maintain STP and other utilities for a minimum period of five years before handing over of apartment to residents association. Therefore, merely because the units constructed in the apartment complexes were sold to Apartment owners and the condominiums were subjected to Apartment Owners Act, by filing Deeds of Declaration do not absolve the petitioners/accused of their obligation as reflected in the proceedings referred above. Therefore, there is no illegality or infirmity whatsoever either in the description of the accused or in the prosecution the petitioners for the alleged offences.
11. Insofar as the last contention urged by the learned counsel for the petitioners that the order of taking cognizance by the learned Magistrate suffers from apparent error of non- application of mind, learned counsel for the respondent-Board does not dispute the fact that the impugned order does not reflect the reasons, nonetheless, the respondent-Board having clearly made out the case for prosecution of the petitioners for the alleged offences, seeks to dismiss the petitions.
12. I have meticulously considered the rival contentions urged by the parties and have carefully scrutinized the material on record. As the petitioners have sought to quash the proceedings at the initial stage of taking cognizance, it may be apt to refer to the guidelines laid down by the Hon’ble Supreme Court in the case of MACHAVRAO JIWAJIRAO SCINDIA & Others vs. SAMBHAJIRAO CHANDROJIRAO ANGRE & Others, 1988 Cri.L.J. 853, wherein it is held that:
“The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.”
13. In the instant cases, the specific accusations made against the petitioners are that petitioner No.1 being a company, and respondent No.2 Vice President of the said company being incharge of the affairs of the said company were found discharging effluents without prior permission of the Board and that the effluent sample collected and analysed by the Board showed that the parameters of the samples were not in conformity with the prescribed standards. According to the complainant, the violations committed by the petitioners constitute the offences punishable under sections 24 and 25 of the Water Act.
14. The first contention urged by the learned counsel for the petitioners is based on Section 49 of the Water Act. The section reads as under:-
“49. Cognizance of offences- [(1) No court shall take cognizance of any offence under this Act except on a complaint made by – a. a Board or any officer authorized in this behalf by it; or b. any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board or officer authorized as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.] (2) Where a complaint has been made under clause (b) of sub-section (1), the Board shall, on demand by such person, make available the relevant reports in its possession to that person:
Provided that the Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest.
(3) Nothwithstanding anything contained in section [29 of the Code of Criminal Procedure, 1973 (2 of 1974)], it shall be lawful for any [Judicial Magistrate of the first class or for any Metropolitan Magistrate] to pass a sentence of imprisonment for a term exceeding two years or of fine exceeding two thousand rupees on any person convicted of an offence punishable under this Act.”
15. The records indicate that complaints were lodged against M/s. Sobha Developers Limited and Sri. N.B. Ashok Kumar by the respondent viz., Karnataka State Pollution Control Board, by its Deputy Environmental Officer. The memo dated 12.06.2012 issued with the approval of the competent authority viz., the Chairman of Karnataka State Pollution Control Board reads as under:-
No.KSPCB/EO/BNG-East/DEO/Criminal Case/2011-12 Dtd:12 June 2012 MEMO Sub: Filing of Criminal case against M/s. Sobha Inner City Technopolis Private Limited (Sobha Developers Limited), E- 106, Sunrise Chambers, 22 Ulsoor Road, Bengaluru-560 037 by name Sobha Daisy Condominium located at Sy.No.31/5.Iblur Village, Varthur Hobli, Bengaluru East Taluk, Bengaluru-560 103-Reg.
Ref: 1. Your Office letter No.1347 dated 16.12.2011.
With reference to the above, and as per cited reference (1), you have reported that, the apartment authorities are discharging sewage into Bellandur Lake. The sewage from apartment complex is discharged without obtaining consent and violated Section 25 of the Water (Prevention and Control of Pollution) Act, 1974.
It is clear from the above that, M/s. SOBHA INNER CITY TECHNOPOLIS PRIVATE LIMITED (Sobha Developers Limited), by name Sobha Daisy Condominium located at S.No.31/5, Iblur Village, Varthur Hobli, Bengaluru East Taluk, Bengaluru-560 103 is discharging sewage without valid consent under the Water (Prevention and Control of Pollution) Act, 1974 from the Board thereby the apartment authorities have committed offence under Section 25 read with Section 44 and 49 of the Water (Prevention and Control of Pollution) Act, 1974.”
It is hereby authorized the Deputy Environmental Officer, Regional Office, Bengaluru (East-2) to initiate criminal action under Section 44 & 49 of the Water (Prevention and Control of Pollution) Act, 1974 by filing criminal case and a miscellaneous case in the competent court after collecting proper evidences against the builder.
THIS IS ISSUED WITH THE APPROVAL OF THE COMPETENT AUTHORITY VIZ., CHAIMAN, K.S.P.C.B.
Sd/-
Member Secretary Karnataka State Pollution Control Board Bangalore.
16. Pursuant to these authorisations, the complaints have been presented by the Deputy Environmental Officer. Alongwith the complaint, the approval accorded is also produced which reads as under:
“It is hereby authorized the Deputy Environmental Officer, Regional Office, Bengaluru (East-2) to initiate criminal action under Section 44 & 49 of the Water (Prevention and Control of Pollution) Act, 1974 by filing criminal case and a miscellaneous case in the competent court after collecting proper evidences against the builder.”
17. In view of these documents, the contention urged by the learned Counsel for the petitioners that there was no proper authorization under Section 49 of the Water Act is liable to the rejected and is accordingly rejected.
18. Coming to the next contention, as rightly pointed out by the learned counsel for respondent Board, the properties wherein the aforesaid apartment complexes were constructed were initially purchased in the name of M/s. Sobha Inner City Technopolis Pvt Ltd.(Sobha Developers Limited) vide sale deeds produced in the respective petitions. The proceedings conducted by the respondent Board before lodging of the complaints as per the proceedings of the technical discussions held in respect of 11 Sobha groups of Apartments clearly indicate that a joint meeting was held on 30.05.2011, which was presided by the Chairman of KSPCB in the presence of the officers of the Board and the representatives of various projects undertaken by Sobha Developers Limited and the representatives of the Residents Association. In the said proceedings, the names of the projects and the STP capacities are detailed in page 2 thereto which clearly indicate that 11 apartment complexes were constructed by M/s. Sobha Developers Limited and it was decided in the said meeting that M/s. Sobha Developers Limited shall maintain STP and other utilities for a minimum of five years before handing over the apartments to residents association.
19. The complaints therefore are rightly lodged against M/s. Sobha Developers Limited and its Vice President, Legal and Land Affairs. The names of the respective Apartments constructed by M/s. Sobha Developers Limited, wherein the alleged violations were detected are also specifically named in the cause-title of the respective complaints. Therefore, there is no error or illegality either in the description of the accused persons or in launching the prosecutions against the petitioners as contended. As a result, this contention also does not merit acceptance.
20. The third contention raised by the learned counsel for the petitioners that the reports obtained by the respondent Board are not in accordance with the parameters prescribed by Bureau of Indian Standards, New Delhi is also equally flawed and misplaced. As rightly pointed out by learned counsel for the respondent Board that by virtue of Rule 3 of The Environment (Protection) Rules, 1986, the Board is empowered to prescribe more stringent standards from those provided in Schedule I to IV of the Act and in terms thereof, the respondent Board has prescribed the parameters for the quality of sewage treated for Urban reuse. The effluents collected from the respective apartments belonging to the petitioners did not conform to the standards prescribed in the memorandum dated 17.11.2007. Therefore, the contentions of the petitioners that the allegations made against the petitioners do not prima-facie attract the offences under Sections 24 and 25 of the Water Act also cannot be accepted.
21. Thus on consideration of the above contentions in the light of the unimpeachable documents produced alongwith the complaints, I do not find any justifiable reason to quash the proceedings initiated against the petitioners on the basis of the grounds raised by the petitioners. However, on perusal of the orders passed by the learned Magistrate taking cognizance of the alleged offences and directing summons to the petitioners, these orders on the facie of it suffer from patent illegality and therefore on this ground, the petitions may have to be allowed remanding the matters to the trial court.
22. It is unfortunate to note that in all the above ten complaints, the learned Magistrate has passed identical orders taking cognizance of the offences which reads as under:-
“Complainant present, he submits that he is a public servant, prays to take cognizance for alleged offence, perused records. The complainant being public servant the sworn statement is dispensed with, cognizance is taken for alleged offence. Register the case U/R No.III, issue summons to accused, call on 31.10.12.”
The above order on the face of it demonstrate total lack of application of mind by the learned Magistrate. It is rather unfortunate and disappointing to note that even though the respondent Board has painstakingly gathered prima-facie material in support of the charges, the learned Magistrate has failed to consider the said material with the seriousness it deserved. The impugned orders reveal that the learned Magistrate has mechanically and casually passed the orders without considering the allegations made in the complaints and without satisfying as to whether the said allegations constitute the offences under the Water Act. Though the Hon’ble Supreme Court and this Court in numerous decisions have laid down the principles to be followed by the learned Magistrate while issuing summons to the petitioners, the learned Magistrate has blissfully ignored the salutary guidelines resulting in miscarriage of justice. The impugned orders manifest that the learned Magistrate has not even looked into the material on record and without recording proper satisfaction has issued summons.
23. In this regard, it may be useful to refer to a decision rendered by the Hon’ble Supreme Court in the matter of taking cognizance. Though expression ‘Cognizance’ has not been defined in the Code, yet, having regard to the significance of ‘Cognizance’ in criminal law, in SUNIL BHARTI MITTAL vs. CENTRAL BUREAU OF INVESTIGATION reported in 2015 AIR SCW 642 in para 45 to 47, it is held as follows:-
’45. …………. Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
46. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into Court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
47. However, the words “sufficient grounds for proceeding” appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad-in-law if the reason given turns out to be ex facie incorrect.”
24. As the impugned orders do not disclose the reasons for coming to the conclusion that a prima-facie case is made out against the petitioners and does not reflect application of mind to the facts of the case, the impugned orders passed by the learned Magistrate taking cognizance of the alleged offences and issuing summons to the petitioners are liable to be quashed. It is solely on account of defect in the order passed by the learned Magistrate, I am constrained to allow these petitions and remand the matters to the trial Court for fresh consideration.
Accordingly, Crl.P.No.1210 of 2013 c/w Crl.P.No.1211 of 2013, Crl.P.No.1212 of 2013, Crl.P.No.1213 of 2013, Crl.P.No.1214 of 2013, Crl.P.No.1215 of 2013, Crl.P.No.1216 of 2013, Crl.P.No.1217 of 2013, Crl.P.No.1218 of 2013 and Crl.P.No.1219 of 2013 are allowed. The impugned orders dated 05.07.2012 passed by the learned Magistrate taking cognizance of the offences and issuing summons to the petitioners are quashed.
All the above cases are remanded to the learned Magistrate to consider the material on record afresh from the stage of receiving the complaints and proceed in accordance with law in the light of the observations made in this order and in the decision of the Hon’ble Supreme Court in SUNIL BHARTI MITTAL vs. CENTRAL BUREAU OF INVESTIGATION reported in 2015 AIR SCW 642.
Sd/- JUDGE *mn/-