Karnataka High Court
Sri G T Hanumantharaju vs Karantaka State Pollution on 24 June, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO.1254 OF 2017
BETWEEN:
SRI. G.T.HANUMANTHARAJU
CHIEF OFFICER (NOW
MUNICIPAL COMMISSIONER)
CHALLAKERE TOWN MUNICIPAL COUNCIL
(NOW CITY MUNICIPAL COUNCIL),
CHALLAKERE TOWN
CHITRADURGA DISTRICT - 577 522
...PETITIONER
(BY SRI K.N.DAYALU, ADVOCATE)
AND:
KARNATAKA STATE POLLUTION
CONTROL BOARD
PARISAR BHAVAN
NO.49, CHURCH STREET
BANGALORE - 560 001
BY ITS ENVIRONMENTAL OFFICER
SRI.BHIM SINGH GOWGI
KARNATAKA STATE POLLUTION
CONTROL BOARD, REGIONAL OFFICE,
CHITRADURGA - 577 501. ...RESPONDENT
(BY SRI PAVAN KUMAR, ADVOCATE FOR
SRI H.DEVENDRAPPA AND ASSOCIATES)
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This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash the cognizance taken by the
Court below registered as C.C.No.137/2016 on the file of
Prl. Civil Judge and JMFC, Challakere and etc.,
This Criminal Petition coming on for Admission this
day, the Court made the following:
ORDER
1. The petitioner is before this Court seeking for quashing of the proceedings initiated on a complaint filed by the Karnataka State Pollution Control Board (hereinafter referred to as 'KSPCB' for short) against the petitioner which on cognizance has been registered in C.C.No.137/2016 on the file of the Principal Civil Judge and JMFC, Challakere.
2. Admit
3. With consent of both parties the matter is taken up for final disposal.
4. The complaint under Section 200 of Code of Criminal Procedure (hereinafter referred to as 3 'Cr.P.C.' for short), Section 44 read with Section 25 of Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred as 'Act' for short) has been filed by the KSPCB represented by its Environmental Officer, Chitradurga alleging that:
4.1 The Town Municipal Council though bound to look after the health and sanitary condition of the general public by providing proper sewage disposal system, is discharging the sewage generated from the entire Town into the natural nalla without establishing a proper sewage treatment plant and without treating the same, which is causing pollution and danger to human life.
4.2 The Municipal Council had not obtained a valid consent from the KSPCB for such disposal of sewage in a natural nalla.4
4.3 Initially, when the consent for disposal was issued by the KSPCB in the year 2009, a specific condition was imposed at that time itself that the Municipal Council shall install and operate an effluent treatment plant as approved by the Board. The Municipal Council shall only discharge the effluent to the place mentioned in the consent order. The Municipal Council shall carryout self monitoring of the effluents on frequent intervals and analyse the same and submit a report to the area regional Office of the KSPCB.
4.4 In view of the non-compliance of the said conditions, the consent application, which had been filed by the Municipal Council for the period 01.07.2010 to 30.06.2011 was refused.
For the subsequent year from 01.07.2011 to 30.06.2012, there was no application which had been filed by the Municipal Council. Thereafter, 5 the applications which have been filed for the period from 01.07.2012 to 30.06.2013 was again refused due to non-compliance. Similar was the case, as regards the applications which had been filed for the period 01.07.2013 to 30.06.2014, as also 01.07.2014 to 30.06.2015. Suffice it to say that over a period of five years there were no steps taken by the Municipal Council to obtain a valid consent from the KSPCB for discharging of the sewage and effluent.
4.5 The KSPCB's Officer inspected the spot on 17.07.2014 and found that untreated sewage was flowing in an open drain near Valmiki Kalyana Mantapa, Bangalore Road, Challakere. 4.6 A notice of intension in Form XII came to be issued on the petitioner who was the then Chief Officer of the Town Municipal Counsel, 6 Challakere under the provision of Section 31(2) of the Act.
4.7 A mahazar was conducted by KSPCB's Officer in the presence of the concerned Technical Officer. 4.8 Despite a request for production of the consent order, no consent order had been produced by the petitioner-the Chief Officer of the Town Municipal Council.
4.9 Hence, the complaint came to be filed against the petitioner relying on Section 48 of the Act.
5. On filing of the complaint, since the complaint had been filed by the Government Officer, the examination of the complainant for the purpose of recording of the sworn statement was exempted by the Magistrate. Thereafter, cognizance was taken on 02.02.2016 and process was issued returnable by 28.04.2016.
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6. The petitioner is before this Court contending that the petitioner could not have been made a party in his individual name and the petitioner is not the only person responsible for the lapses, if any, the establishment of the STP (Sewage Treatment Plant) or ETP (Effluent Treatment Plant) and obtaining of consent is a collective responsibility of the Karnataka Urban Water Supply and Drainage Board (KUWSDB), Bangalore Water Supply and Sewerage Board (BWSSB), Urban Local Bodies and as such the Municipal Commissioner, the Secretary of Forest Ecology and Environment Department, Project Director, District Urban Development Cell (DUDC), Chitradurga, the Deputy Commissioner, Chitradurga, the Commissioner and Director Municipal Administration, Bangalore and the Chief Secretary, Government of Karnataka, etc., were also responsible. The petitioner has been singled out and individually made a party, without making 8 the others responsible a party, which is not permissible.
7. Sri. K.N.Dayalu, learned Counsel for the petitioner would submit that:
7.1 A sworn statement ought to have been recorded before taking cognizance. Non-
recording of sworn statement vitiates the entire proceedings.
7.2 The order passed by the learned Magistrate on 02.02.2016 is laconic, it does not indicate as to what are the materials that the Magistrate considered before taking cognizance and issuing process.
7.3 That the provision under Section 49(i)(b) of the Act has been violated inasmuch as no notice for a period of 60 days in a manner prescribed has been issued to the petitioner.
97.4 KSPCB has not obtained necessary prior sanction under Section 197 of Cr.P.C. before initiating the prosecution against the petitioner, who is a government official.
8. Per contra, Sri Pavan Kumar, learned Counsel appearing for Sri Devendrappa, learned Counsel for the respondent-Board would submit that the complaint has been filed in a proper and required manner. There is no dispute that the petitioner was in-charge of the affairs of the Town Municipal Council, hence, the compliant has been filed against him, if there are any material found implicating anyone else, proceedings would be initiated against such persons. The complainant being a public servant, Section 200 of Cr.P.C. provides for exemption to be granted for recording of sworn statement which has been so rightly granted by the Magistrate. The order of the Magistrate is proper and correct, in that, the order speaks of the facts as 10 submitted in the complaint and the cognizance having been taken thereon. He further submits that the Section 49(i)(b) of the Act is not attracted. What is attracted is Section 49(i)(a) of the Act. In case of a complaint being filed by the Board, there is no question of any notice which is required to be issued to the accused. Relying on the decision of this Court in W.P.No.30610/2008 (Sri. V.C. Chinnappa Goudar Vs. Karnataka State Pollution Control Board and another DD. 30.10.2008), he submits that there is no requirement for prior sanction under Section 197 of Cr.P.C. in case of a complaint being filed for pollution, against head of a governmental department in terms of Section 48 of the Act.
9. Heard Sri. K.N.Dayalu, learned Counsel for the petitioner and Sri Pavan Kumar, learned Counsel appearing for Sri Devendrappa, learned Counsel for the respondent-Board and perused the records. 11 Filing of the complaint in the individual name:
10. A perusal of the Section 48 of the Act would indicate that where an offence under the Act has been committed by any Government department, the head of the department shall be deemed to be guilty of the offence and shall be liable to be proceeded with against and punished accordingly. However, he shall not be rendered liable for any punishment, if he proves that the offence was committed without his knowledge or he exercised due diligence to prevent the commission of such offence. In the present case, it is not in dispute that the petitioner was the Chief Officer of the Town Municipal Council as on the date that the offence is alleged to have been taken place. Therefore, the filing of the proceedings against the petitioner cannot be faulted with, particularly, in the light of Section 48 of the Act. The defence available to the petitioner is that he was not aware of the 12 commission of the offence or the offence occurred despite due diligence exercised by the accused, which would have to be established during course of the trial. It is for the petitioner to establish that he had taken all steps and action required to obtained concerned from KSPCB, despite which he could not so obtain it. As regards the contention that the establishment of the STP (Sewage Treatment Plant) or ETP (Effluent Treatment Plant) and obtaining of consent is a collective responsibility of the Karnataka Urban Water Supply and Drainage Board (KUWSDB), Bangalore Water Supply and Sewerage Board (BWSSB), Urban Local Bodies and as such the Municipal Commissioner, the Secretary of Forest Ecology and Environment Department, Project Director, District Urban Development Cell (DUDC), Chitradurga, the Deputy Commissioner, Chitradurga, the Commissioner and Director Municipal Administration, Bangalore and the Chief Secretary, Government of Karnataka, etc., 13 were also responsible and as such the petitioner could not be singled out, it is for the petitioner to establish during the course of trial what communications he had addressed to the above officers and the inaction on their part, so as to absolve the petitions of his liability, the court may in such circumstance seek for investigation to add any other person responsible for the offence as an accused in the proceedings.
Non-recording of sworn statement:
11. Sri K.N.Dayalu, learned Counsel for the petitioner has contended that the sworn statement of the complainant ought to have been recorded before the magisterate could take cognizance. Such a contention can not be countenanced under law. Since under Section 200 of Cr.P.C., a complaint if were to be filed by a public servant, the Court is not required to examine the complainant before taking cognizance of an offence, more so when the public 14 servant has filed the complaint purporting to act in discharge of his official duties. Thus, this contention of the petitioner is also not sustainable. Regarding non-reference to the documents relied upon by the respondent:
12. Sri. K.N.Dayalu, learned Counsel for the petitioner has contended that the order dated 02.02.2016 suffers from infirmity inasmuch as all the documents stated to have been filed along with the complaint have not been referred to in the said order. Non-reference of the said documents, renders the order of cognizance bad in law.
13. On a perusal of the order dated 02.02.2016, it indicates that the complainant has been heard and the Court was satisfied that a prima facie case for cognizance of the offence had taken place. In my considered opinion, this would be sufficient in the circumstances of the case.
15Issuance of prior notice under Section 49(i)(b) of the Act:
14. Sri. K.N.Dayalu, learned Counsel for the petitioner has contended that before initiating any proceedings, a notice ought to have been issued to the petitioner in terms of the Section 49(i)(b) of the Act.
15. On perusal of the complaint it indicates that as far back as the year 2009, the consent for discharge of effluent of sewage was refused. Subsequently, the same was followed up consistent refusal over six times for the years 2010, 2011, 2012, 2013, 2014 and 2015, that is to say on six occasions when the consent for discharge was refused, the Municipal Council could not have discharged the effluent or sewage without such consent. The laws relating to prevention of pollution apply equally to a government department as that to a private party. A government servant cannot seek to justify his 16 action of carrying out pollution, on technical grounds, a government official has to be more circumspect in adhering to the pollution control laws than a private individual/entity.
16. Be that as it may, Sri. K.N.Dayalu, learned Counsel for the petitioner is relying upon a requirement of issuance of a prior notice under Section 49(i)(b), which requirement arises only when a complaint is filed by 3rd party or a private citizen, for environmental degradation, the same is not applicable to a complaint which is filed by the KSPCB in terms of Section 49(i)(a) of the Act. Thus, this contention is also rejected. Prior sanction under Section 197 of Cr.P.C.:
17. Sri. K.N.Dayalu, learned Counsel for the petitioner has contended that a prior sanction under Section 197 of Cr.P.C has to be obtained before initiating prosecution under the Act. This contention is also 17 no longer permissible to be taken, in view of the decision of this Court in W.P.No.30610/2008 (Sri. V.C. Chinnappa Goudar Vs. Karnataka State Pollution Control Board and another DD. 30.10.2008).
For all the above reasons and circumstances, none of the contentions being acceptable, the petition is rejected. However, it is made clear that the observation made herein will not influence the trial Court while trying the matter.
Sd/-
JUDGE KTY