Allahabad High Court
M/S Albert David Ltd. Thru. Director Mr. ... vs State Of U.P Thru. Prin. Secy. Home ... on 24 April, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- APPLICATION U/S 482 No. - 3956 of 2023 Applicant :- M/S Albert David Ltd. Thru. Director Mr. Bhajan Kumar Ladia Opposite Party :- State Of U.P Thru. Prin. Secy. Home Deptt. Govt. Civil Secrt. Lko. And Another Counsel for Applicant :- Salil Kumar Srivastava,Rahul Srivastava Counsel for Opposite Party :- G.A.,Ashok Kumar Verma Hon'ble Suresh Kumar Gupta,J.
1. Heard learned counsel for the applicant, learned AGA for the State as well as Mr. Prashant Kumar Singh, Advocate holding brief of Shri Ashok Kumar Verma, learned counsel for U.P. Pollution Control Board and perused the records.
2. The present petition has been filed with the prayer to quash the summoning order dated 30.5.2022 and also quash the entire proceedings of complaint Case No. 3253 of 2018 (U.P. Pollution Control Board vs. M/S Albert David Ltd. and others) pending before the Special Court of Judicial Magistrate, Pollution/CBI, Lucknow.
3. Similar petitions have been disposed of by this court by order dated 27th September 2022 in application under section 482 No.1079 of 2020 and other connected petitions, which reads as under:
"1. Heard Mr. Prashant Chandra, Senior Advocate assisted by Ms. Mamima Pahwa, Advocate and Mr. Lallan Sinha, Advocate, Mr. I.B. Singh, Senior Advocate assisted by Mr.Sunit Kumar, Advocate, Mr.Nadeem Murtaza, Advocate, Mr. Subham Tripathi, Advocate, Mr.Kuldeep Srivastava, Advocate, Mr.Altaf Mansoor, Advocate, Mr.Karunanidhi Yadav, Advocate, Mr.Jalaj Kumar Gupta, Advocate, Mr.Sanjeev Kumar Singh, Advocate, Mr. Amit Chaudhary, Advocate, Mr.Dileep Singh, Advocate, Mr.Ramendra Kumar Mishra, Advocate appearing for the petitioners, Mr.A.K. Verma, learned counsel appearing for U.P. Pollution Control Board and Mr.Rao Narendra Singh, learned A.G.A. for the State.
2. In these petitions challenge has been made to prosecution launched by the U.P. Pollution Control Board in pursuance to the directions issued by National Green Tribunal, New Delhi.
3. National Green Tribunal, New Delhi vide order dated 08.08.2018 passed in Original Application Nos.231 and 2014 and 66 of 2015, in the matters of Doaba Paryavaran Samiti vs State of U.P. and others, inter alia in paras 7 to 13 observed as under:-
"7. On 12.07.2018, this Tribunal directed that those industries which are not complying with the standards should shutdown as suggested in the report of the Committee. 119 industries were found to be noncompliant. It is now stated that there is calculation mistake and the said number is 124. This Tribunal also directed stoppage of use of ground water contamination with mercury which was found to be happening as per the report of the Committee.
8. The statutory provisions particularly Water (Prevention and Control of Pollution) Act, 1974 contain penal provisions to deal with those who discharge pollutants in the water bodies. Section 44 read with Sections 25 and 26 of the said Act provide for minimum sentence of 1 year and 6 months and for repeat of the offence not less than two years. Inspite of categorical evidence there is no information whether any such prosecution has taken place against the alleged offenders in the present case. Unless the offenders are punished for serious offence of discharge of effluents in rivers and other water bodies, the pollution continues threatening the very existence of the inhabitants. There, is thus patent failure in performance of duty. Section 49 of the Water (Prevention and Control of Pollution) Act, 1974 provides for congizence of offence being taken at the instance of the Board or any officer authorised by the Board or by any other person after giving notice to the Board in the manner laid down. The law has entrusted important public duty but the statutory Boards are in breach of trust reposed in them.
9. Faced with the above, learned counsel appearing for Uttar Pradesh Pollution Control Board fairly stated that Uttar Pradesh Pollution Control Board will now initiate prosecution forthwith not later than six weeks from today against all those who are found to be responsible for discharge of effluents not meeting the prescribed standards.
10. The contaminated water near to any industry should itself alert the authorities that there is unauthorised discharge of effluents which is a justification to forthwith take steps to identify the culprit. Section 33A of the Water (Prevention and Control of Pollution) Act, 1974, also provides for direction of closure, prohibition and regulation of any industry or its operation or process, wherever violation of law prohibiting discharge of effluents is found.
11. It is high time that the State Government must keep strict vigilance on the failure of the Pollution Control Board to determine whether such failure is on account of incompetence or dishonesty. Such responsibility must be overseen by the Chief Secretaries of all the States. They must be held accountable for the failure of the system wherever the Pollution Control Boards are found careless or wanting in performing their duties. The person responsible must be forthwith removed and proceeded against so as to be made accountable under the law. In case the habitants are not able get even potable water or fresh air, the guarantee of the Constitution of Right to Life itself is defeated. The State is thus under Constitutional obligation has to ensure that potable water is available to every citizen and very stern action is taken against any individual responsible for such contamination. After all, the water is a scarce source and has to be protected and used in a rational manner. Water is to be made available not only to few who can afford bottled water and mineral water but also to every citizen of the country. No citizen can be deprived of potable water and of right of breathing fresh air. Next generations cannot be deprived of this essential gift of nature, necessary for survival of life systems.
12. The sources of contaminated water are required to be closed so that the innocent citizens do not suffer in their health and if water is contaminated and unfit for consumption such warning should be displayed at appropriate places accordingly for information of the citizens.
13. We are also of the view that District Magistrates at the district level, Chief Secretaries of the States at State level and the CPCB at National level, in coordination with others, are required to prepare district level, state level and national level action plans for availability of potable water for the citizens and for a very effective mechanism for punishing the polluters. The action plan may also consider restoration of the water quality where pollution is already taking place. Such data must be published on the website of States and Districts as to what extent water quality has been improved in a particular period."
4. Mr.Ashok Kumar Verma, learned counsel appearing for the U.P. Pollution Control Board does not dispute this fact that the prosecutions against the petitioners have been launched in pursuance to the directions issued by National Green Tribunal. Some of the companies had approached the Supreme Court by filing Civil Appeals against the directions issued by the N.G.T., New Delhi and the Supreme Court has stayed the directions of initiating the criminal prosecutions in pursuance to the said order dated 08.08.2018 passed by the National Green Tribunal. Final decision is yet to be taken by the Supreme Court as the matter is still subjudiced regarding legality and validity of the directions issued by the National Green Tribunal, New Delhi.
5. Considering the aforesaid facts and submission, these petitions are disposed of with a direction that impugned criminal proceedings shall be kept in abeyance till final decision of the Supreme Court in pending Civil Appeals against the order dated 08.08.2018 passed by N.G.T., New Delhi. In case Supreme Court upholds the direction, the prosecutions shall go on subject to the remedies available to the petitioners under the law. In case the Supreme Court set asides the directions issued by the N.G.T., prosecutions would come into an end. However, it would be open to the Pollution Control Board to initiate a fresh prosecution, if it finds that there are violations of any law by any of the parties."
4. Since the issue involved in this petition is identical to the issue involved in the judgement and order dated 27th September 2022 passed in application under section 482, Cr.P.C. and other connected petitions, the present petition is also disposed of in terms of order dated 27th September 22 passed in the said petition and in the same terms.
Order Date :- 24.4.2023 Shravan