IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.4423 OF 2015 BETWEEN:
Sri. Anjum Parvez, S/o. Mohammed Shamsuddin, Aged about 47 years, Presently the Chariman, BWSSB, Cauvery Bhavan, K.G. Road, Bengaluru – 560 009.
(By Sri. K.B. Monesh Kumar, Advocate) AND:
The Karnataka State Pollution Control Board, Represented by its D.E.O., Sri. T.M. Siddeshwara Babu, S/o. Late T.G. Mylarappa, Aged about 45 years, Having office at:
Regional Office – BNG City South, Nisarga Bhavan, 1st Floor, Thimmaiah Road, 7th “D” Cross, Shivanagar, Opp: Pushpanjali Theater, Bengaluru – 560 010.
(By Sri. Jeevan J. Neeralgi, Advocate) …Petitioner ...Respondent This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the entire proceedings in C.C.No.11692/2015 pending on the file of V A.C.M.M., Bengaluru on the complaint filed by the respondent against the petitioner for offences punishable under Section 41(2) and 43 of the Water (Prevention and Control of Pollution) Act, 1974 and to punish him for the above stated offences.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Petitioner is aggrieved by the action initiated against him for the alleged offences punishable under Sections 41(2) and 43 of the Water (Prevention and Control of Pollution) Act, 1974.
2. Heard learned counsel for the petitioner and learned standing counsel appearing for the respondent.
3. A closure order under Section 33(A) of the Water (Prevention and Control of Pollution) Act, 1974 r/w Rule 34 of Karnataka State Board for the Prevention and Control of Water Pollution was passed by the Karnataka State Pollution Control Board vide order No.KSPCB/EO- BCS/AEO/CLOSURE ORDER/2013-14/817 dated 03.07.2013. Operative portion of the order reads as under:
“In exercise of the powers conferred under section 33(A) of Water (Prevention & Control of Pollution) Act, 1974 and Rule 34 of Karnataka State Board for the Prevention & Control of Water Pollution (Procedure for Transaction of Business) and Water (Prevention and Control of Pollution) Rules, 1976, the Karnataka State Pollution Control Board hereby directs, 1. The Occupier of M/s. Ambe Polymers (New Ownership operating in the name of M/s. Devi Enterprises) No.96/A, Basappa Reddy Compound, Y V Annaiah Road, Yelachenahalli, J.P.Nagar Post, Bangalore-560 078 to close the industrial operation or process forthwith and until further orders.
2. The Managing Director, BESCOM, Nrupathunga Road, Bangalore, to issue necessary directions to the concerned Executive Engineer, and Assistant Executive Engineer of BESCOM, Bangalore to stop/cut off power supply to the above said Industry forthwith and until further orders.
3. The Managing Director, BWSSB, Bangalore to issue necessary directions to the concerned Engineer not to give water supply to the above said unit forthwith and until further orders.
4. The Commissioner, Bruhat Bangalore Mahanagara Palike, Bangalore to withdraw the license issued to above said unit forthwith and until further orders.”
4. The said order was challenged by M/s. Devi Enterprises in WP No.44828/2013 (GM-POL) and by order dated 12.03.2015, the petition was dismissed with cost quantified at `10,000/- and further, directions were issued to Karnataka State Pollution Control Board, in the interest of justice and for ensuring the rule of Law to file necessary complaint against the officers concerned ie., against respondent Nos.2, 3 and 4 therein, as well as the petitioner namely M/s.Devi Enterprises for not implementing the impugned order dated 03.07.2013. It is submitted that the Special Leave Petition preferred against the said order has been dismissed by the Hon’ble Supreme Court of India.
5. In terms of the above directions, the Karnataka State Pollution Control Board / respondent, filed a complaint which was numbered as PCR No.6738/2015 (CC No.11692/2015).
6. The grievance of the petitioner is that at the relevant time, the petitioner was not the Chairman of the Bengaluru Water Supply and Sewerage Board. Further, as on the date of passing of the closure order, the property in question did not lie within the jurisdiction of the Bengaluru Metropolitan Regional Area and thus, it was not in the power of the petitioner to implement the direction issued by the Karnataka State Pollution Control Board and further, no water connection was given to the offending company M/s.Devi Enterprises, therefore, the initiation of proceedings against the petitioner was patently illegal and untenable.
7. Learned counsel for the petitioner submits that in view of the bar contained in the provisions of the Water (Prevention and Control of Pollution) Act, prosecution could not been launched against the petitioner when the offence is committed without his knowledge as he has exercised his duty with due diligence.
8. On perusal of the records, it is noticed that in the complaint, the petitioner is described by designation, where as in the closure report, direction was issued to the Managing Director, BWSSB not to give water supply to the offending unit. In WP No.44828/2013, the petitioner herein has not arraigned as respondent in his personal capacity, rather the Chairman of BWSSB was shown as one of the respondent and the Division Bench of this Court in its order dated 12.03.2015 had directed the Pollution Control Board to lodge the complaint against the “officers concerned”. The said direction cannot be construed as permitting the Karnataka State Pollution Control Board to proceed against the petitioner in his personal capacity. As per the directions of this Court, proceedings could have been initiated only against the “officers concerned” at that relevant time.
9. In view of the above, it is made clear that the petitioner herein shall not be made personally liable for the alleged offence. Insofar as the contention urged by the petitioner that the alleged offence was committed without his knowledge and that he exercised due care and diligence to prevent commission of the offence could be urged only during trial. Hence, liberty is reserved to the petitioner to canvass the said contention before the trial Court at the time of hearing before charge.
With the above observation, petition is disposed of.
All other legal contentions urged by the petitioners are left open for consideration of trial Court at appropriate stage. Since the petitioner is sued in his official capacity, the trial Court shall consider any application moved by the petitioner for exemption from personal appearance favourably.
Sd/- JUDGE GH