Karnataka High Court
M/S Athashri Paranjape vs The Karnataka State Pollution Control ... on 22 July, 2010
Author: C.R.Kumaraswamy
Bench: C.R.Kumaraswamy
' ' IN THE HIGH CouRT or KARNATAKA AT BANGALORE DATED THIS THE 22"" DAY or IIILY, 2010 BEFORE THE HON'BLE MR. JUSTICE c.R.KuMARAsI:vAMvj ' CRIMINAL PETITION No.77~ooF A Between: 1. M/s. Athashri Paranjape Sci'.-.emesV. Bangalore I'-"lat No.1, ' Monalisa Apartments, 100 Feet Road, 6"' Main, 2"' Stage, Indirana'g-.-ar; _ Bangalore -- 560 038." 2. Mr.Shashank _Paranj:ape"f, _ ~ S/o Late Pu;i3'osiho'tta:m Para n'jape",«..._..-- Aged about 'T448513/.€'_arvs,,'_ _ . M/s. Athe-shr.A.i"'~Pa r'a.n,I'ap'.e, Sche mes, Bangaiore"wE|'at1'.:_No.J_,'= V * ._ Monaiisa" A-.;;a".3 rtrT'1?e"nts',.«"- 100 Feet Roa»e_,..,_sth iv'...aI'n._, -- ' 2"" Stage, Indir.a"n.a'rga'r---,., " __ Bangalore' :- 560 '-0'38}-«.__ Petitioners (By Sri-..Pra N'.-Katfi-av"i.., Advocate) 'Th e _£<.'a r SI.ra te Po I ! u ti o n Controi B'oa";%d,',;;Regionai Office, Bang._a|ore.Ea=_st, 22"" Floor, B Public" Ut'-iiit'y"Bui!ding, 'M.G.Road,':. Bangalore ~-- 560 001, Deputy Environmental Officer. 'a*~'i,"'s.Lex Justice, Advocates) Respondent
U This Criminal Petition is filed under Section 482 of Code of Crirniriai Procedure praying to quash the proceedings in C.C.i\io.4027/09 (Old C.C.No.80/2007) pending on the fiie of CMM (TC) 1, Bangalore District.
This Criminal Petition coming on for dictating ordersfthisv day, the Court made the foIlowing:--
LLB This Criminai Petition is filed under»:Sect'i"ogn oi' of Criminai Procedure praying to quas.h:"the pro::egedi'ngs:.A'i'n it C.C.i\io.4027/O9 (Oid C.C.No.8O/'2'0V:i§'7) pendi_ri_g'*o.n théelvltiie of Metropoiitan Magistrate (Traffic ChourtVi_:Ij)iflS'a_ngaiore"District.
2. The primary facts of the The"co'ri1Ppiaina'i§t"is :th.e"Karnata ka State Pollution -Control Board representedlVby"i«i.ts'ijepiji-ty Environmental Officer. It is stated in the..icom'pi_aiii.t"that the complainant is a body
-"'.corpQ:rateconstituted._...under Section 4 of the Water V.'-..(Pre'ventio_n'~raged"'Controi of Pollution) Act, 1974 (hereinafter referred to "the Water Act" for short). Section 44 of the jWater"Act,yV 19.74 provides penalty for the contravention of 'Section of the said Act and the Ruies made thereunder and 45--A provides penaity for contravention of certain provisions of the Act. Section 49 of the said Act provides for 9/ the procedure for taking congnizance of the offence committed under the Water Act.
It is stated in the Compiaint that accused No.2 who is working as Managing Director of accused No.1-Con*s'pa*ny--_:i's, fully responsible and incharge of all affairs of accused "
the construction of residential fiats at.the..project.Vi"It-'Iris's'tated'_ if that in the case on hand the accused':iper_so~ns construction of residential compieyiiiapartnvieints of the first accused at the project _a4d"dres's_»_vstated: cause title, without obtaining 'i-Vfro%tn'.tl'se'v'vcomplainant as per Section 25 of the._Water.~Act::'fo'r-- which is a mandatory activity starts.
The accused--. as per Section 2(d), 'sewage effluent' as "per Section 2{ 'trade effluent' as per Section 2(k), 's;ie\"~e.r' as pergéection 2(gg) and 'stream' as per Section 2(j)..oKf the.Wa:t'erAct, has created and is creating 'pollution' as per Section:H2{_e}V.i'Vof"'the Water Act. '"Thev-._'accJsed persons have taken up construction of 206 :".v4.4"*--res.ide.ntia'i'"fiats for aged people at survey*Nos.19/2, 146/4 'I43/2, near Pattendur, Agrakara Village, Whitefieici Road, ..:'_4"wK...R;Puram, Bangalore East Taiuk, Bangalore and 1030 U In pursuance to the application for Environment Clearance Certificate, the site was inspected on 17.06.2006 which is as per Mahazar and again on 27.06.2006, was inspected by Assistant Environmental Officer that the accused did not obtain valid consent u_nd,ei---..th'eA.:Wateir'5 Act and found that the construction ..wasiir.- Therefore, he drew Mahazar and prepa_red_ inspecfiori Having not stopped the constructi'o.n"activity; .inspE.teVéof'Vwtitten direction not to construct, co«ntr'a've'"ntion of Section 33--A of the 'accused have committed offencetand as per Section 41 (}l)" ififhereiaiter, once again a directionigwas 33--A of the Water Act to stop the constgru ctiidn it it isi'~submit'ted__t_hat the accused person submitted one applicaltion~-,for consent for establishment on 10.07.2006, for.'"oo,nst'i*ti'cti_on;'"of 88 fiats and disclosed the capital 0 _inves'tmer*at.as"' 13 crores. This application is made with rrialafide V'i'ntention to avoid or overcome the applicability of i.notVivfi'cation dated 07.07.2004. When we compare the two ':'_4"'a»pplications, the particulars stated in these two applications 6/ are different and they do not match each other. This is done with a view to mislead the compiainant who is a quasi~judicial authority and setting the law into motion in a wrong way. Thus the accused committed the offence punishable..Vu-nlder Section 45---A of the Water Act. To obtain establishment from the complainant before~v--sdtartihgi .the_'"
construction activity is within the kniowledége of But intentionally not obtaining: _C_onsent"for pgutting of V construction is contravention of plroyiisions of the Water Act. The State Poliutiongfiontroxl l:§oai*d_iis"'createciA protect and preserve the environyrnentg through the compiainant, is t'he"';c.Liistoci--iariyoi'" the .enyiiro.nfment and hence it is the property complainant and the accused persons by"'--*/yirtue "ofthe:rhcoénstruction work damaged that property. ii.Therefo,re,V'the accused are iiable to be punished under"Se;ctior_i"r1e_2 (1) (c) of the Water Act. All these facts d'i'3cio_selA that_ntiieV'iact of the accused continuing to put up the _const'ructi,on without obtaining the Environment Clearance and Consent for Establishment is intentional and A deliberate and hence the act of the accused attracts continued 2h"'w;of_f_ence and are liable to be prosecuted. Therefore, the C/' complainant alleged that the accused persons have committed offence punishable under Sections 41(2), 42(1)(c), 44, 45-A and 47 of the Water Act. The witnesses for the above complaint are Regional Officer, Deputy Environmentaiwdfficer and Assistant Environmental Officer of the Karnata'ka.';$taVta_V"
Pollution Control Board, Bangalore.
3. I have heard learned counsel for the pletitioners aVs~E_we'ii5l.:
as learned counsel for the respondent.
4. Learned counsel for the petitioners snbrnlts the notification dated 27.O1.1§)E.'?§'it--do3sf'i--n0t4 to the project in question in view of__the;'notifilcavtionu._datedj:1{)i?.O7.20O4. He further s.;;ii§nfi'itsiwtii:at e:i;'ei:.:th.o:'ugh iiewhad filed a writ petition to quash the-criminal and the same was disposed of, he can urge the _rel.ief. in"vthis'.Vpetition independently. It is the "case p.etitioxne'rs'"that at the instance of Sri.C.J.Singh, be a pixbiiospirited person, Pollution Control Board""has.'I.o-tigeti this complaint. It is the contention of the 'le-arned ..counsel for the petitioners that the project does not :.c_'on1e"upnder the purview of the notification dated 27.01.1994 "«l«.-asitarnended by notification dated 07.07.2004. Learned "feoensei for the petitioners further submits that Section 25 of 2' 2/ the Water Act does not apply to the project in question. The question of obtaining Consent for Estabiishment does not arise in the instant case, since the project is yet to be commenced. Since the project is not completed, the question of dischar:gi'ng effluent does not arise. Therefore, no offencej'has'.j_~been.v committed in view of Section 27 of the Water Act-.--. V
5. Learned counsel for the petitionergreijieédtyon 'the. passed by the division Bench of this in V c/w. W.P.4100/2008 c/w. wh;'iifiia91o4/2o0@_5'i~'c/iii, ccc 231/2008 disposed of not for this Court to express any opiniolnAV_Vin'."_th{is on the order passed by the Ben~ch'.~.2:"?'--iT'he__V:ViT'relief sought in W.P.189lJ'4/20062 the proceedings in c.c.4o27/2«oo9i~(oit:_cr§ictt§.:o,aé'oo7) pending before the trial Courty.._§"But the iii-vliysiyon Eiench of this Court has not quashed thew.slaid_¥'proceedings. Therefore, learned counsel for the p'et_iti'onie'rs4:"i*iaV_s iiiied this criminal petition seeking to quash the _ proceedings in?c.c.4o27/2009 (Old c.c.so/2007). ;'i.earned counsel for the respondent submits that W.P. ._iii'r293i3./C2606 and W.P.4100/2008 has no relevance to this "'=:crin1inal petition since c.c.4o27/2009 (Old c.c.so/2007) 6/' -10-
8. Learned counsel for the respondent has relied on the decision in case of U.P. POLLUTION CONTROL BOARD V/S_..._l_3R. BHUPENDRA KUMAR Mom & ANR. reported in (20o9}j'2.X:'s.c'ce,A' 147 wherein the Hon'b£e Supreme Court has held T-
"Criminal Procedure Code, 19.73% -- s.'48'2ri['_r-;r' % V Quashing of criminal complaint inherent power --- Approaci2__ Caut_iou's~ " V approach, but no fixed._ru£e -- Ouestioln-5 fact can be gone into no offence is} disciosed, but at the stage is not neclessary V';g;.hou.ld be exercised to do ,:'eaE- and" siubstantliaf justice and if rnjade'*V.t'o-~-~a:buse that authorit$g_"----.§o"las -injustice, the C.O.Lli"tkliat-'Q power ~pVre'ventr.al5use."
9. It is_ the learned counsel for the respondent thatthevVpetitiolners have not approached the Court .-gvyith <§5éan_i1anvds.' A1':-tsupport of his contention he relies on the A"'der:Visio.n __of s P CHENGALVARAYA NAIDU v/s. JA'GAi§i--A1AfHx"_&:..o':?§'s'. reported in (1994) 1 SCC 1 wherein the
-iV-lon'bl4é Ape} Court has held thus:
4_ "The Courts of law are meant for imparting " justice between the parties. One who comes to the Court, must come with clean hands. we are constrained to say that more often than not, U process of the Court is being abused. Property- grabbers, tax--evaders, bani<--loan--dodgers and other unscrupulous persons from all 'walks of life find the Court--process a convenient lever to retain the illegal--gains indefinitely. We have no hesitation to say that a person, who's cas_e..__is. based on falsehood, has no right to approac.h:"the,:VV' Court. He can be summarily th,rov_vn out"at--i:any"'~. "
stage of the litigation."
There is a force in the subrnission ofthe leai'rned_c_oun§sei for the respondent.
10. I have carefully peVrus'.éd,t'«he 2.rn»ater,iai:"pl,aced before the Court. It is alleged in thecomplaiint".th_at"".accused persons have take'n""up.,:ti1eaconstiractionSofmrezsidential apartments in the name-_Ao'f,_ project address, that is Survey i\ios.V'19/2, VVi4_6/'«.1g,S"«1'?l8/2, near Pattendur, Agrakara «=.\_/illag,e~,,V\{Ahitefiel'd""RQ.ad. K.R.Puram l-lobli, Bangalore East V'VfE'a!Vuk,..,wit_hout4..,obt_aining consent as per Section 25(1)(a) of theiflwater'V'A--'£§ct,,:=hV'yvhich is mandatory requirement before gcommenpcernent of commercial activity. The accused are the it '"fo:ccupier'VVas per Section 2(d), 'sewage effluent' as per Section 'trade effiuent' as per Section 2(k) of the Water Act. T he accused persons have taken up the construction of the / 6/ W12- project for 1030 persons at an average of 5 persons per fiat about 1,359,050 of water at an average consumption of_.._;35 iiters per day per head and is expected to discharge"ra:.E:iout.A' 1,11,240 liters of waste water (sewage) per * amended notification dated 7.7.2004 i__ss.ue_d by'theiVi';in'i's'try..ofvi-V_V 2"
Environment and Forest, Governrnentiofillrridjiafifi discharges more than 50,000 iiter-s__ of Vsevvage should obtain Environmentai Cieararace Sertifiicatevfi before undertaking the construction' without obtaining the consent for...estab§V.iwsii:mcéi}£,~iiyinmencing the constructive activ'ity'}:is an offence. "
11. The.a.iie_gation*--1nnadejagwainst, accused is that before commencemerut they did not obtain consent for establishmentas vrequ_i.red»-uiinder Section 25 of the Water Act. _ Therefore', the accused have contravened Section 25 of the punishabie under Sections 42, 44 and 47 of"thé°'.__ One of the contentions raised by the iearned co.;J"nsr-étior the petitioners is that the project does not 2'".'::.".""--co'megsander; the purview of the Notification dated 27.1.1994 A as-.,am.en'ded vide notification dated 7.7.2004. Though it is the wr.:on__t§ention of the iearned counsel for the petitioners that the U (especiaiiy in reiatioa to the food chain), disposal of waste and genera} nuisance. This being the position, criminai law reiating to environment should be administered in substance than in form. Adhering to too much of technicalitiesrwili obscure or defeat the very purpose and object of cr_imin.aE'__i'a'ié\.'f:V"
In this case, the aiiegation made against the petiti,§neVrs.A.ii:s t_ha3t'~i they did not obtain consent as 25(3.)(a) of the Water Act. It is _aliegj'e.d"i:hat tne;petitioneks' have contravened Section 25 oa'=r.:t'i1e Wa'ter*Afit, is punishable under Sectior'.s~..42, Mahti of therwater Act. The averments made in th_e 'cor?npia_inti~c_|ear that the petitioners did obtain "the Board before commen:cVeme'_ntri;af project_ iniouestion. The averments made in the compiairitjpcoh-stitut'es the offence aiieged against the petii:ioners;' is .the"'.cor1:tention of the learned counsei for "hthe "'p$etii;i-oners that """ "subsequently the petitioners have V'*optaisn'eci from the Board. But this wiii not wipe out the 'ctirne coi;ri.i.ifri'i;tted by the petitioners but utmost this factor 'may be considered for awarding iesser sentence in case if the stamina: case against the petitioners ends in conviction. ___"'i'.'Therefore, in my view this is not the rarest of the rare case ""V.Vihih'ere this Court can exercise inherent power to quash the 2/ _ 15 _ criminal proceedings. This criminal petition is devoid of merits and the same is iiable to be dismissed.
:3. In the result, I pass the following:
QRDER This Criminal Petition is dismissed. ._ AHB/KM