IN THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE, BENGALURU CITY Dated this the 07th day of December 2017 PRESENT:

Sri S.Nataraj, B.A.L., L L.B., Chief Metropolitan Magistrate CC No.37639/2006 Complainant: Karnataka State Pollution Control Board, Represen-

ted by its Deputy Environ-

mental Officer - Dodda-

shanaiah,(Regional Office), Bengaluru North - I, No.25, 9th Floor, P.U.Building, Mahatma Gandhi Road, Bengaluru-560001.

-V/s-

Accused : 1. M/s Maruthi Enterprises, No.29, White House, St. Mark's Road, Bengaluru-560001, Represented by its Partner Anurag Jain.

2. Anurag Jain s/o Late L.P.Jain, Partner, M/s Maruthi Enterprises, No.29, White House, 3rd Floor, St. Mark's Road, Bengaluru-560001.

                               2            CC No.37639/2006



Date of offence          :        Prior to 14-06-2006

Offence                  :        U/S 25, 26 of Water
                                  (Prevention and Control
                                  of Pollution) Act, 1974
                                  punishable under Section
                                  44 of the said Act

Plea of the accused      :        Pleaded not guilty

Final order              :        Accused Convicted

Date of Judgment         :        07-12-2017

         J U D G M E N T U/S 355 Cr.P.C.

The complainant filed complaint under Section 200 Cr.P.C. against accused for the offences under Section 25 and 26 of Water (Prevention and Control of Pollution) Act, 1974 punishable under Section 44 of the said Act.

2. The case of complainant in brief is as follows- The complainant is a body corporate constituted under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974, is empowered to perform the powers and function assigned to it under the Act. The complainant is represented by the Deputy Environmental Officer, who has been authorized by 3 CC No.37639/2006 the Board to file the complaint. Accused No-1 is a company within the meaning of Section 47 of the Act, which is engaged in construction activities of Apartment Buildings. Accused No-2 is the partner of accused No-1 firm, who is having responsibility to manage the day to day affairs of accused No-1. The accused require to obtain prior consent for operation of project from the complainant Board under Section 25 and 26 of Water (Prevention and Control of Pollution) Act, 1974. The occupier of accused project is carrying on the project i.e., construction of Apartment building without prior consent for operation of project from the complainant. On 06-06- 2006, the accused filed application seeking consent of the complainant Board for operation of project i.e., construction of apartment building, as a result of which, the same was inspected by the Deputy Environmental Officer, Bengaluru North on 14-06- 2006 and found the accused was engaged in operation of construction activities of apartment building without prior consent. The complainant issued show cause notice to the accused on 24-06-2006, for which no reply was given. Thereby, it is alleged that the 4 CC No.37639/2006 accused violated Section 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 punishable under Section 44 of the said Act.

3. After taking cognizance, summons was issued to accused No-1 and 2. The accused appeared through a counsel. Accused No-2 being a partner of accused No-1 signed the vakalath on behalf of accused No- 1(firm) and is on bail. After furnishing the copy of complaint, Accusation was read over and explained to accused. The accused pleaded not guilty and claimed to be tried.

4. The complainant in order to prove his case examined PW1 and 2 and got marked documents at Ex.P1 to 6. Thereafter the statement of accused as required U/S 313 of Cr.P.C. was recorded, wherein the accused denied the incriminating evidence. The accused No-2 has got examined himself as DW1.

5. Heard arguments on both sides and perused the written arguments filed by the learned counsel for accused.

6. The points that arise for my consideration are-

1) Whether the complainant proves that the accused committed the offence punishable under Section 44 of the Water (Prevention and Control of Pollution) Act, 1974?

2) What order?

7. My answer to the above points are as under for the following reasons.

           Point No-1 :          In the Affirmative
           Point No-2 :          As per final order
                      REASONS
Point No-1:

8. It is the specific case of complainant that the accused without prior consent of complainant Board had started construction of residential apartments, which is punishable under Section 44 of the Water (Prevention and Control of Pollution) Act, 1974.

9. The complainant in order to prove its case examined PW1 Doddashanaiah, the Deputy Environmental Officer, who filed the complaint on behalf of the Board. In his evidence, he has deposed 6 CC No.37639/2006 that he is authorized to file complaint. In this regard, the authorization letter is produced at Ex.P4, wherein the Board in its committee meeting held on 19-10- 2006 had authorized the Deputy Environmental Officer to initiate criminal action, for violation of Section 25 of the Act against the accused. The complainant also examined PW2 Ramesh.A., the Senior Environmental Officer.

10. According to the complainant's counsel, the accused without prior consent had started construction of residential apartment, accused No-2 who was managing the affairs of accused No-1 had filed application for clearance/NOC to construct 192 Flats at Kodigehalli. It is also argued that the accused had filed declaratory affidavit at Ex.P6, wherein it is stated that as on the date of filing Ex.P1 application for NOC, the construction of residential flats was started, which is in violation of Section 25 of Water (Prevention and Control of Pollution) Act, 1974, punishable under Section 44 of the Act.

11. The counsel for accused in written arguments contended that there are no documents to show that as on the date of filing application on 06-

06-2006, the construction was started by the accused. There is no proof that the officials of complainant Board had visited the spot. No mahazar was drawn and no photographs are produced. The evidence of PW1 cannot be believable. The complainant before permitting the accused had collected Rs.8,00,000/- and it is lying with the Board. It is further contended that the evidence of PW2 does not establish the case of complainant. On the other hand, the accused have not violated the provisions of said Act.

12. On careful consideration and submissions of both sides, I have carefully perused the materials on record. It is not in dispute that the complainant i.e., Karnataka State Pollution Control Board is established under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974. Thus, the complainant Board is empowered to discharge the duties under the provisions of said Act.

13. PW1 is admittedly a Deputy Environmental Officer. Though in his personal name authorization was not given to file a complaint by the Board meeting at Ex.P4, however by designation, PW1 was authorized to file a complaint. Ex.P4 authorization is 8 CC No.37639/2006 not disputed by the other side. Under Section 49 (1)

(a) of the Water (Prevention and Control of Pollution) Act, 1974, no court shall take cognizance of any offence under the Act, except on complaint by a Board or any officer authorized in this behalf by it.

14. In the present case, the Board has authorized PW1, the Deputy Environmental Officer to make complaint against the accused. Therefore, PW1 is competent to file complaint on behalf of the Board under the provisions of Act against the accused.

15. It is not in dispute that as per Ex.P1, the application was submitted by accused No-2 as a partner of accused No-1 Maruthi Enterprises, seeking consent for construction of residential apartment project. Under Section 47 (1) (a) of the Water (Prevention and Control of Pollution) Act, 1974, "company" means any body corporate and includes a firm or other association of individuals. Thus, the accused No-1 partnership firm falls within the meaning of Company under the above said provision. Under Section 47 (1) (b) of the Water (Prevention and Control of Pollution) Act, 1974, "director" in relation to a firm means a partner in the firm. Accused No-2 is 9 CC No.37639/2006 the partner of accused No-1 and the same is not disputed by him.

16. Under Section 47 (1) of the Water (Prevention and Control of Pollution) Act, 1974, the accused may prove that-

           (a)         the offence was committed
                       without his knowledge, or

           (b)      he exercised all due diligence to
                    prevent the commission of the
                    offence,

Defence under sub-section (2), the accused may prove that the offence has been committed without-

(a) his consent or connivance, or

(b) any neglect on his part

17. In the instant case, according to complainant, accused No-2 was in charge and responsible to the company for conduct of business of company at the time of offence. The accused No-2 either in the cross-

examination of PW1 and 2 or in his evidence on oath did not contend that he was not the in charge and was responsible to accused No-1 for the conduct of business of accused No-1 company. Hence, it goes without saying that accused No-2 was in charge of and 10 CC No.37639/2006 responsible to accused No-1 company for the conduct of business of accused No-1.

18. PW1 in his examination in chief deposed that on 14-06-2006, he had visited the spot where the accused had started constructing the apartments without prior consent under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974. On the basis of spot visit, he had prepared a report at Ex.P2. Thereafter on 24-06-2006, the show cause notice was issued to accused through registered post. Accused No-2 had submitted declaratory affidavit at Ex.P6 with his signature at Ex.P6(a) to the complainant Board.

19. In the cross-examination of PW1, the spot visit was denied by the accused. Similarly, Ex.P6 - the declaratory affidavit is disputed stating that on blank stamp paper, the signature of accused No-2 was taken and created the same. From the above said material on record, the court has to look into that, whether before submitting Ex.P1 application to the complainant Board for construction of residential apartment, the accused had started construction of the residential apartment. If so, it contravenes under Section 25 of 11 CC No.37639/2006 the Water (Prevention and Control of Pollution) Act, 1974, punishable under Section 44 of the Act.

20. In this regard, it is necessary to extract, Section 2(e) of the Water (Prevention and Control of Pollution) Act, 1974, wherein the same reads as under-

2(e) "pollution" means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms.

Further, Section 25(5) of the Water (Prevention and Control of Pollution) Act, 1974 reads as follows-

25(5) Where, without the consent of the State Board, any industry operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new 12 CC No.37639/2006 discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge.

From the above said provision, even the construction of residential apartment without the consent of State Board, likely to create nuisance etc., falls within the purview of Section 25 of the Water (Prevention and Control of Pollution) Act, 1974. Further, mere starting of construction of apartment without permission will attract the said provision.

21. The accused in his oral evidence deposed that in 3½ acres of Sy.No.211 at Kodigehalli Village, he had constructed apartment. On 06-06-2006 for construction of apartment, he had submitted application to the complainant. On 14-06-2006, the complainant officials had visited the spot. For about 4½ months, the complainant had not given any 13 CC No.37639/2006 information and asked him to deposit Rs.8,00,000/-. He was granted permission to construct the apartment within five years, which he has completed within the stipulated period.

22. From the examination in chief evidence of accused No-2, the following facts are established-

(a) He had undertaken to construct apartment in Sy.No.211 of Kodigehalli Village,

(b) He had submitted application on 06-

06-2006 for permission to construct apartment,

(c) On 14-06-2006, the complainant Board officials visited the spot,

(d) He has not disputed that he is in charge of and was responsible to accused No-1 Maruthi Enterprises for the conduct of business of said firm at the time of filing application at Ex.P1,

(e) He has not disputed the execution of Ex.P6 declaratory affidavit in favour of the complainant.

Therefore, the suggestion made to PW1 by the defence counsel that Ex.P6 is a created document by 14 CC No.37639/2006 obtaining signature on blank stamp paper holds no water.

23. The Ex.P6 was attested by notary public B.Gopala Krishna, signed by accused No-2 as a partner for Maruthi Enterprises. In para 1, 2 of the said affidavit, it is clearly stated as follows-

1) We have started construction of residential flats at Sy.No.211 of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk, before making an application for the Environmental clearance and No Objection Certificate under the provisions of Environment (Protection) Act, 1986.

2) We further state that the non-submission of application, REIA reports, property documents and consent fees to the Karnataka State Pollution Control Board in time was not intentional, but an inadvertent act of ignorance on our part which may be condoned.

Thus the accused admitted that, before making an application at Ex.P1, they have started construction of residential apartment at Sy.No.211 of Kodigehalli Village.

24. Ex.P2 is the spot inspection report by PW1, as per the instructions of PW2, wherein the observation in fourth page at para 1 is that-

The developer has started construction activity before filing the application. The super structure work is completed and plastering is under process.

The said inspection was made on 14-06-2006 i.e., one week after filing Ex.P1 application by the accused. There is no reason to dis-believe the version of PW1 and 2 and the documents at Ex.P6 and 2, as there is no dispute by the accused No-2 in his evidence. The enemity is not elicited by accused to depose falsely by PW1 and 2 against the accused.

25. On the other hand, the officials of complainant Board have adduced evidence, which clearly establishes that the accused before obtaining prior permission from the Board for construction of residential apartment in Sy.No.211 of Kodigehalli Village, had started construction, in contravention of Section 25 of the Water (Prevention and Control of Pollution) Act, 1974, punishable under Section 44 of the Act. In the result, I answer Point No-1 in the Affirmative.

Point No-2:

26. The accused No-1 and 2 are found guilty for contravention of Section 25, which is punishable under Section 44 of the Water (Prevention and Control of Pollution) Act, 1974. Under Section 44 of the said Act, the punishment prescribed is imprisonment for a term which shall not be less than one year six months, but which may extend to 6 years and with fine. In the instant case, accused after starting construction without permission, submitted application seeking permission. Subsequently the accused had obtained permission and completed construction within five years. Accused No-1 is a firm and accused No-2 is the partner of accused No-1, who was managing and in charge, responsible for accused No-1 and both are liable to be convicted.

27. The accused No-2 has not contended by way of defence that the offence was committed without his knowledge, he has exercised all due diligence to prevent the commission of offence and; without his consent or connivance, or any negligence on his part, the offence has been committed. In the absence of such contention and proof, the accused are liable to be 17 CC No.37639/2006 sentenced for the offence punishable under Section 44 of the Act. Considering the above said circumstances on record, I proceed to pass the following:

ORDER Acting under Section 255(2) of Cr.P.C., accused No-1 and 2 are convicted for an offence punishable under Section 44 of Water (Prevention and Control of Pollution) Act, 1974, for contravention of Section 25 of the Act.

Accused No-2 is sentenced to undergo S.I. for one year six months and also shall pay a fine of Rs.25,000/-, in default to undergo S.I. for three months for the said offence.

Office to supply a free copy of judgment to accused.

(Dictated to the Stenographer on Computer. The computerized print out taken by Steno is revised, corrected and then pronounced by me in the Open Court on this day i.e., 07-12-2017) (S.Nataraj), Chief Metropolitan Magistrate, Bengaluru.

ANNEXURE List of Witnesses examined on behalf of complainant:-

                PW1         :     Doddashanaiah
                PW2         :     Ramesh.A.

List of Documents marked on behalf of complainant:-

                Ex.P1       :     Application dated
                                  06-06-2006
                Ex.P2       :     Inspection Report
                Ex.P3       :     Show Cause Notice
                Ex.P4       :     Memo/Letter dated
                                  05-12-2006
                Ex.P5       :     Complaint
                Ex.P6       :     Declaratory
                                  Affidavit

List of Material objects produced:-

NIL List of Witnesses examined on behalf of defence:

DW1 : Anurag Jain List of documents marked on behalf of defence:

NIL C.M.M., BENGALURU.

07-12-2017 Judgment pronounced in the open court vide separate sheets.

ORDER Acting under Section 255(2) of Cr.P.C., accused No-1 and 2 are convicted for an offence punishable under Section 44 of Water (Prevention and Control of Pollution) Act, 1974, for contravention of Section 25 of the Act.

Accused No-2 is sentenced to undergo S.I. for one year six months and also shall pay a fine of Rs.25,000/- in default, to undergo S.I. for three months for the said offence.

Office to supply a free copy of judgment to accused.

Chief Metropolitan Magistrate, Bengaluru.