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CC No. 153/01
PS. Hauz Khas

Date : 21.01.2015
                                   ORDER

In brief, the facts of the case are that complainant is the resident of Shahpur jaat and proposed accused M/s East West Linkers is running an industrial unit at premises no. 241 to 245 Shahpur jaat which is purely a residential area. The M/s East West Linkers is owned by Smt. Preet Singh. It is alleged that accused persons are carrying out illegal industrial activity in the premises without obtaining consent from DPCC or any other authority. It is further alleged that accused persons are using steam generator (boiler) in the process which was causing air pollution. It is further alleged that DPCC had knowledge of this wrong and illegal activity but did not took any action. Complainant relied upon certified copy of WS filed in suit no. 466/08 to show this.

It is further alleged that the above mentioned generators were used on roof top without any permission. It is also alleged that ground water is extracted without permission. It is further alleged that accused persons are also violating the direction of Hon'ble Supreme Court in MC Mehta V/s UOI, that "no industrial activity shall be carried out in the non conforming area". On these facts, complainant wants that accused persons be summoned for contravention of section 3 and 7 of Environment Protection Act as same are punishable under section 15 of Environment Protection Act.

It is pertinent to note here that cognizance was declined by this court Page No. -2- on the ground that notice has not been served as per provision contained in the Act, but that order was set aside and revisional court directed this court to proceed on the facts of the case and decide upon the issue of cognizance on facts of the case.

Thereafter, court took cognizance and complainant produced himself as witness and deposed that accused no.2 is running a factory at Shahpur Jat and accused no.1's company which has its office at Panchsheel shopping complex. During evidence, complainant proved the notice which is Ex. CW1/D. He also relied upon WS filed on behalf of DPCC in suit no. 466/08 alongwith inspection report and affidavit of Asst. Environment Engineer D.K. Shrivastav. During his PSE he deposed on line of his complaint.

After evidence, inquiry was first marked to PS Hauz Khas u/s 202 Cr.P.C. But on request of complainant, the inquiry was directed to be conducted by DPCC which is the specialized agency. DPCC filed its report and its report stated that present complaint is not maintainable as mandatory notice was not given. It however also admitted that the area where this generator was running is residential / non conforming area and the Department of Industries is responsible for taking action against a unit operating in non-conforming area. It was further reported that all the industries operating in non conforming areas are required to be closed down. In the annexure 2, which is request letter written by Environment Engineer to Commissioner of Industries, it is mentioned that the unit has MCD license for the activity of storage and sale of readymade garments. During inspection conducted on 26.02.14, it was found that one steam Page No. -3- generator for steam pressing is installed at roof top and at the premises, finishing and packing of garments is being done. It was further found that two generators were operating at the premises in question. The report is silent with regard to permission of use of water for the above purpose. However, during inspection, it was found that no water or air pollution was being caused and the affluent which are discharged are domestic in nature. It was also found that no dyeing or bleaching or use of chemical was observed during inspection.

Before deciding as to whether proposed accused persons are deserved to be summoned , court was required to satisfy itself on following points :

1. Whether this court has jurisdiction to deal with this matter or not ;

2. Whether prescribed notice was given or not ;

3. Whether ingredients of section 3 and 7 are satisfied or not. As far as 1st point as to whether this court has jurisdiction to deal with the present matter. Environment Act prescribed that court of Metropolitan Magistrate has jurisdiction to deal with the matter. This court has territorial jurisdiction of places whether the industry in question is allegedly being run. However during court proceedings, it was brought to the notice that there is one circular of Hon'ble High Court accordingly to which court of Ld. ACMM of Special Act only has power to deal with the cases under Environment Act.

However, the complainant argued that , that circular is prospective in nature. He further argued that circular deal with the cases which are filed by the DPCC and the present matter is filed by the individual after Page No. -4- giving notice to the DPCC. Perusal of language used in the circular dt. 23.2.2012 shows that it deals with the cases which are filed by DPCC. This complaint is filed by an individual, not by DPCC. Hence this court came to the conclusion that this court has jurisdiction to try and proceed with this matter.

2nd question which came is before court whether notice was u/s. 19 of Environment Protection Act was proper notice. There is bar for the court to take cognizance of any offence on private complaints except on prior notice being given as is prescribed under Environment Protection Act.

In the present matter, complainant proved prima facie during his deposition that he gave notice and revisional court vide order dt. 30.08.2011 has held that notice as valid.

3rd question before court was whether the alleged industry is creating any pollution or not and whether this pollution is exceeding the limit which is prescribed under the Environment Act.

Complainant could not point out what is the prescribed limit of pollution in the area. In order to prove that industry was creating pollution, complainant relied upon inspection report which was filed by DPCC in suit no. 466/08. However, inspection report is silent regarding the quantum of pollution and degree of pollution. Without bringing on record the degree of air pollution, it cannot be said that offence u/s. 7 is complete. Complainant failed to bring on record any other evidence to show that pollution which was created by the industry in question was exceeding the limit which is prescribed by rules. The report on which reliance has been placed is silent with respect to the degree of pollution.

Further, during inspection , which was carried out by DPCC u/s. 202 CrPC, and it was found that now, industry is not creating any air pollution. Thus, as complainant failed to bring on record the exact degree of pollution, it can be said that he failed to prove that section 7 of Environment Protection Act is violated.

Complainant had also pleaded that action of the proposed accused also fall within the parameter of section 3 and which is punishable u/s.

15. This section shows that Central Govt may make any rule or can do anything necessary for purpose of securing the effective implementation of the provisions of this act.

He submitted that it has come in report of DPCC that company is running in non confirming area and in non confirming area, no industry can run in view of the judgment of Hon'ble Supreme Court passed in case titled as M.C.Mehta v Union of India in WP No. 4677/1985. Perusal of report filed by the DPCC shows that , this industry is running in non confirming area in violation of judgment of Hon'ble Supreme Court.

He submitted that by operating in non confirming area is violation of judgment of Hon'ble Supreme Court and it is also punishable u/s. 21 of Air Pollution of Prevention of Pollution Act 1981.

The court considered the provisions of section 3 of Environment Act as well as section 21 of Air Pollution Prevention Act 1981.

As far as proceedings against the accused for offence under Air Pollution Prevention Act, there is requirement of giving separate prior notice to DPCC under Air Pollution Prevention Act and in absence thereof, this court cannot take cognizance as contents of that notice is different Page No. -6- from the notice given under Environment Act.

As far as section 3 of Environment Act is concerned, section 3 empowers the Central Govt to prescribe the area in which running of any other industries is prohibited or allowed.

In M.C.Mehta v Union of India in WP No. 4677/85, Hon'ble Supreme Court banned the running of industry in non confirming area but also gave directions to Govt of India to categorize and identify the industry which can operate in non confirming area, meaning thereby that there was not blanket ban for the industries to run in non confirming area. The Government has permitted certain kind of industry to run in non confirming area.

As per report of DPCC, the area where industry in question is run in non confirming area, but they cannot take any action & Department of Industry is responsible for this, they have already requested to Department of Industry in this regard. As per notification dt. 7th February'2007 of Central Government for Master Plan 2021, there are 121 industries which are permitted to operate in non confirming area. Further the additional conditions under which these 121 industries can operate are that number of worker should not exceed more than 5 and the electricity load should not be more than 11KV.

In the present case, as per the report of DPCC the number of workers is around 50 and the electricity load is 150 KV. Further condition is that all industries should registered itself. But, as per report of DPCC, no permission / licence / sanction has been applied for registration except MCD Licence which is also not for the purpose. Further Environment Page No. -7- Protection Act Rules 1986 prescribe certain condition which every industry has to follow e.g., one condition is every industry is required to file the annual pollution report. As the industry is running without permission or any other kind of approval, it is natural inference these conditions and rules are also not followed.

In the present case, industry is pertaining to readymade garment finishing. As per list industry w.e.t., readygarment is allowed, but shall not be doing washing. Further the number of workers shall not exceed 5 and electricity shall not exceed 11 KW which as discussion is above in 50 & 150KW respectively.

In view of above discussion it is quite clear that industry in question is operating in violation of section 3 which is punishable u/s. 15.

As per the complaint the owner of industry in question is Smt. Preet Singh. As per report of DPCC, this is a private limited company, but in its reports, it is stated that it is being run by Smt. Preet Singh meaning thereby Smt. Preet Singh is responsible for running and managing the industry.

Accordingly, in view of the above discussions, this court find her / accused no. 1 prima facie liable for violating the section 3 of Environment Protection Act, which is punishable u/s. 15 of that Act. Hence, both these persons shall be summoned on filing of PF & RC to face the trial u/s. 3 read with section 15 of Environment Protection Act on filing of PF / RC for 24.4.2015.

(Ankit Singla) MM-03/SD/New Delhi 21.01.2015 Page No. -8- Page No. -9- Page No. -10- Page No. -11- Page No. -12- Page No. -13- Page No. -14- Page No. -15- Page No. -16-