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Case No. 58277/2016
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Criminal Revision No. 14/2016
Case No. 58277/2016
1. East West Linkers
12-13, Panchsheel Shopping Centre
New Delhi-110017.
2. Smt. Preet Singh
East West Linkers
H. No.241-245 Shahpur Jat
New Delhi-110049. .....Petitioners
Versus
1. Kuldeep Singh Tomar
House No.224, Shahpur Jat,
New Delhi-110049.
2. Chairman/Member Secretary,
Delhi Pollution Control Committee,
ISBT Building, Kashmiri Gate,
Delhi. ..... Respondents
Instituted on : 03 st March 2016
Argued on : 30th September 2016
Decided on : 30 th September 2016
JUDGMENT
1. This revision petition u/s 397 of the Code of Criminal Procedure (Cr.P.C.) is preferred against order dated 15th December 2015, passed by the Court of Sh. Pritam Singh, Ld. Additional Chief Metropolitan Magistrate, Central District, Tis Hazari Courts, Delhi, whereby M/s East West Linkers and Ms. Preet Singh, proprietor of M/s East West Linkers have been summoned to face trial for violation of Section 3 of the Environment Protection Act, 1986 punishable u/s 15 of the said Act.
2. In brief, relevant facts leading to the filing of this petition are that on 17th March, 2010 a criminal complaint u/s 193 of the Environment Protection Act East West Linkers vs Kuldeep Singh Tomar Page 1 out of 12 Case No. 58277/2016 for the offence u/s 15 in contravention of Section 3 & 7 of the said Act was filed by Kuldeep Singh Tomar (R-1). Vide order dated 13.04.2010, learned trial court declined to take cognizance of the offence. Aggrieved with the order, complainant preferred a revision petition wherein Sh.Atul Kumar Garg, Ld ASJ-04, South District, Saket, New Delhi recalled and set aside the order dated 13.04.2010, observing that learned Magistrate was required to decide again the case on the basis of the facts mentioned in the complaint.
3. Thereafter, vide order dated 17.04.2012, learned trial court took cognizance and listed the matter for pre-summoning evidence u/s 200 Cr.P.C. Complainant examined himself as PW-1 and vide order dated 20.05.2013, SHO was directed to investigate the matter u/s 202 Cr.P.C and was asked to file report within two months. Enquiry report was filed by SI Harbeer Singh, PS Hauz Khas, Learned trial court noted that IO was not having any experience to enquire into the matter as the matter was technical and therefore, matter was sent to Delhi Pollution Control Committee (DPCC), which was directed to investigate the matter and submit report. On 15th March 2014, inspection report was filed on behalf of DPCC. Vide order dated 21.01.2015 accused persons (petitioner herein) were summoned by Ld trial court to face trial u/s 15 of the Environment Protection Act. This order was challenged by the petitioners and vide order dated 17.07.2015, Court of Sh. Sanjeev Jain, Ld. ASJ, South District, Saket Court sent the trial court record back with the directions to transfer the case to the 'specially designated court' of learned ACMM (Special Act), Central District after setting aside impugned order dated 21.01.2015 being without jurisdiction. Thereafter, court of ACMM (Special Act) Central heard the matter and vide order dated 15.12.2015 summoned the petitioner again u/s 3 punishable u/s 15 of Environment Protection Act.
4. This court has heard submission advanced by Sh. Vishal Gosain, Ld counsel East West Linkers vs Kuldeep Singh Tomar Page 2 out of 12 Case No. 58277/2016 appearing for the petitioners, complainant Sh. Kuldeep Singh Tomar and Sh. Nilesh Sawhney, Ld counsel for DPCC.
5. Sh. Vishal Gosain, Ld counsel appearing for the petitioner submitted that the summoning of the Revisionists in the present case is bad in law because there is not even a whisper of an allegation about how Mrs. Preet Singh is incharge and responsible for the functioning of the Industry or how she is managing the day to day affairs of the Industry. It is submitted that it is a matter of record that she is not the Managing Director of M/s East West Linkers, hence criminal liability cannot automatically be attributed to her as the concept of vicarious liability is a concept alien to criminal law. Sh. Gosain contended that trial court overlooked the fact no notice was served on the State Board or the Government of the State and the Ministry of Environment and Forests which is mandatory under Rule 11 of the Environment Protection Rules. It is further submitted that trial court failed to understand that the issues of Environmental Pollution cannot be determined unless there is a report of Government Analyst under Rule 8 of the Environment Protection Rules about the nature of pollution in any given area and which is to be produced in the Court before which proceedings, if any, are instituted.
6. Sh. Gosain, Ld counsel further submitted that trial court failed to appreciate that the Judgment of the our Supreme Court in MC Mehta vs Union of India (Civil Writ No. 4677 of 1985) applies only to industries which have been established after 1.8.1990. It is submitted that it is a matter of record that the said industry was set up in 1981 which is proved by perusal of the Factory License. Sh. Gosain, Ld counsel urged that trial court failed to appreciate that the Factory License permitted the Revisionists to employ a 100 workers on a given day, thereby nullifying the allegations of the Respondent No.2. Ld counsel for petitioner submitted that trial court failed to appreciate that all permissions that were East West Linkers vs Kuldeep Singh Tomar Page 3 out of 12 Case No. 58277/2016 required by the Revisionist to run the said industry, be it from the Department of Factories or from the MCD, were complete. It is further submitted that a perusal of the receipts of the property tax for the years 2015-16 and 2016-17 reflect that the Revisionist was paying property tax for the purposes of running an industry. Furthermore, "Conversion Charges" or "mixed land charges" were being paid to the MCD, for the purposes of running an industry in a residential area. Sh. Gosain, Ld counsel contended that stance of the Revisionist gets further fortified by the fact that the MCD had issued a license to run the said industry way back in 1983 and the same was valid till the year 2000, after which the license stood canceled in light of MC Mehta's case (supra). However, since the industry was set up in 1981, the MCD, issued ad hoc licenses to the Revisionists. Ld counsel for petitioner argued that it is in light of the fact that MC Mehta's case( Supra ) has no bearing on the industry in question; that the Factory License as well as the license issued by the MCD clearly permitted the usage of the property as an industry and no air or water pollution is being caused by the running of the industry; He submitted that the number of workers allowed to work was 100 as per the factory license and the MCD issued a license to the revisionists for running of the industry in 1983 and "Conversion" and "mixed land charges" are being paid till date to the MCD for usage of the land as an industrial plot in a residential area. Ld counsel submitted that no offence is made out against the Revisionists herein and the order dated 15.12.2015, summoning the Revisionists to face trial for offences under Section 3 and Section 15 of the Environment Protection Act, 1986, is bad in law and is liable to be set aside.
7. Sh.Kuldeep Singh Tomar, complainant (R-1) advanced submission in person submits that Section 3(V) Central Government Act take measures for preventing environment pollution to restrict the areas/portions close of industries which shall East West Linkers vs Kuldeep Singh Tomar Page 4 out of 12 Case No. 58277/2016 or shall not be carried out subject to the provisions of this Act. Sh. K.S. Tomar, complainant (R-1) submitted that he was an advocate, of Jaswant Singh who had filed a suit No.466/08 for seeking mandatory injunction for restraining defendant No.2, against Commissioner MCD as well as petitioner/M/s East West Linkers owners/occupiers for carrying noise, Air and Water Pollution. It is submitted that in that suit, written statement was filed by DPCC on 17.04.2009 along with inspection report dated 10.02.1999. Stand of the DPCC is that in view of Section 22 & 46 of Environment Protection Act 1981 and Section 52 Water (Prevention and control of Pollution) Act, the remedy with the plaintiff was to file a complaint before the Court of Magistrate u/s 19/43 & 49 respectively of the aforesaid Act. Complainant submitted that suit No.468/08 was withdrawn by the complainant Jaswant Singh on 18.05.2009 and order dated 18.05.2009 passed by the court, shows that the said suit was allowed to be withdrawn in view of the reasons shown in the application.
8. Sh. Nilesh Sawhney, Ld counsel appearing for DPCC submitted that admittedly, as per the license issued by Inspector factory i.e. Annexure A, filed by the petitioner, the maximum power capacity permitted was 2.5 HP whereas admittedly, petitioner is using about 150 KW and moreover, at the left hand bottom of the Annexure A, it is mentioned that same was valid till the plot/flat was offered to the license holder and in the present case, admittedly, petitioner was offered an alternative plot for relocation, however, the same offer was not availed of by the petitioner by not depositing requisite charges. License placed on record by the petitioner is only an adhoc license for non confirming area and was only valid up to 31st March 2003 and on the same very license, it is mentioned that adhoc license does not authorizes the petitioner for getting any license from any municipal department and as such, no license was issued to the East West Linkers vs Kuldeep Singh Tomar Page 5 out of 12 Case No. 58277/2016 petitioner and therefore, is not placed on record despite specific directions. Merely depositing of conversion charges under self assessment method cannot entitle the petitioner to claim that the land use has actually been converted from residential to the industrial.
9. It was further pointed out that as per MPD 2021, Chapter 7.3 and 7.4, household industries are permitted in residential area having maximum five number of workers and maximum industrial power load of 5KW and industrial unit is only permitted after provisional registration by the Government of NCTD; Furthermore, separate industrial electric connection (single phase) and Municipal License, would be necessary to set up a household industry.
10. In rebuttal, Sh. Vishal Gosai, Ld counsel appearing for petitioner submitted that the license to run a factory issued by the Government of NCT of Delhi was issued on 15th September 1981 and the same was being renewed from time to time and lastly renewed in 2016 and the number of maximum workers permissible on any day was '100' and even the permissible limit, in relation to the usage of electricity is clearly mentioned as 2.5 HP in the third column of the factory license. Sh. Gosain submitted that there was no violation attributable to the petitioner in terms of the Environment Protection Act, Air Pollution Act or any other law in force and case was squarely covered by the order of Supreme Court in 'MC Mehta vs Union of India', since those parameters were applicable to industries which had been established after 1st August 1990. Ld counsel submitted that even the Delhi Municipal Corporation had issued a license in the year 1983-84, which was placed on record as Annexure C of written submission during arguments in the revision petition before this court and license issued by MCD was renewed from time to time. It is urged that Municipal Corporation never raised any objection with regard to the running of this unit, which is reflected East West Linkers vs Kuldeep Singh Tomar Page 6 out of 12 Case No. 58277/2016 from deposit and acceptance of property tax as late as in the year 2015-2016 (filed as Annexure B of written submission before this court). Ld counsel argued that in these circumstances, there is no contravention of Section 3 punishable u/s 15 of the Environment Protection Act and the impugned order dated 15th December 2015 passed by the court of Ld ACMM suffers from serious infirmity in law and on facts and is consequently liable to be set aside.
11. In support, Sh. Vishal Gosai, Ld counsel relied upon judgment of Hon'ble High Court of Delhi in a case titled as A.K. Ganju vs CBI1, submission made by the Ld counsel for DPCC are unsustainable as it has been laid down in the said judgment that in case of any violation under a special statute, proceedings which are maintainable against the erring party can be instituted only under the said statute and no other law for the time being in force. It is submitted that even in the said case, the CBI had sought to institute prosecution under the Prevention of Corruption Act on the basis of an alleged violation under the MCD laws, however, Hon'ble High Court was of the view that the proceedings were maintainable only under the MCD laws and not under the PC Act. It is submitted that applying the same yardstick to the facts of the present case, even if it is to be assumed that on the date of the inspection, there was some discrepancy with regard to the MCD license, no prosecution under the Environment Protection Act is maintainable and MCD had not launched any prosecution against the the petitioner in the present case and in the impugned order, Ld ACMM held that there was no violation under Air and Water Pollution Control Act. It is submitted that the petitioner cannot be held liable beyond the scope of the complaint and observations made by the Ld ACMM in the impugned order and in these circumstances, petitioners are entitled to be discharged.
12. After hearing submissions advanced at bar and sifting the material on 1 CRL.M.C. 2384/2011 decided on 22nd November 2013 East West Linkers vs Kuldeep Singh Tomar Page 7 out of 12 Case No. 58277/2016 record, this court finds no merits in the contention of Ld counsel for the petitioner and there is sufficient material on record to proceed further against the petitioner for the offence punishable u/s 3 punishable u/s 15 of the Environment Protection Act is made out against the petitioners.
13. Relevant portion of Section 3 of Environment Protection Act, 1986 reads as under:-
(1) Subject to the provisions of this Act, the Central Government, shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution.
(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:-- "..........
(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;..."
14. Attention of the court was drawn towards office order dated 27th January 2012 issued by DPCC regarding attending various types of complaints and inspections are to be carried out in case of specific complaint against the following categories of the industries/ units operating in Non conforming / residential areas of Delhi:
"H" Category units as per Master Plan of Delhi 2001; 27 "F" Category units as identified by an Expert Group (of Nodal Agency of MOUD); 33 "F" Category units as identified by Govt. of Delhi (Identified by an Expert Group); Prohibited/Negative list of Industries as per MPD 2021. As per said office order, DPCC shall take action for immediate closure of the unit by directing the concerned Deputy Commissioners (Revenue District) for its effective closure as East West Linkers vs Kuldeep Singh Tomar Page 8 out of 12 Case No. 58277/2016 per said Judgment of the Hon'ble Supreme Court dated 07.05.2004 /Master Plan of Delhi. Copy of such letters issued in non - conforming / residential areas are forwarded to concerned Municipal Authority (MCD) and DDA with a copy to Commissioner of Industries.
15. On asking, Ld counsel appearing for DPCC had pointed out that apart from aforementioned categories of Industries/units the remaining complaints in non- conforming/residential areas of Delhi and the general complaints relating to entire non conforming/residential areas, shall continue to be forwarded to Municipal Corporation of Agencies for taking necessary closure action, as per the Hon'ble Supreme Court's judgment dated 7.5.2004 in M.C. Mehta Vs. UOI & ORS, regarding closure/shifting of the unauthorized/illegal/non-conforming industries in non-conforming/residential areas of Delhi. Copy of such forwarding letters shall be sent to the Commissioner of Industries (working as a nodal officer on behalf of Supreme Court Monitoring Committee). It is submitted that in view of the said judgment of the Hon'ble Supreme Court DPCC does not grant Consent under the Air & Water Acts to the units which are located in Residential/ Non-Conforming areas in Delhi and are not in conformity with respect to Master Plan of Delhi. DPCC grants Consent under the Air & Water Acts to those units which are in Approved Industrial Areas/ Redevelopment Areas/ Conforming Areas and the Units/activities are in conformity with respect to Master Plan of Delhi.
16. The complaint has been filed in this case u/s 19 (b) of Environment (Protection) Act, 1986, according to which any person after giving notice of not less than 60 days in the prescribed manner of the alleged offence and his intention to make a complaint to the Central Government or to the Authority or the Officer authorized can file a complaint. Perusal of the record shows that in the present case, requisite notice Mark CW-1/D had been given by the complainant to East West Linkers vs Kuldeep Singh Tomar Page 9 out of 12 Case No. 58277/2016 the Chairman, Member, Secretary, Delhi Pollution Control Board/Committee and vide order dated 30th August 2011, the revision petition filed by the complainant was allowed by Ld ASJ which considered the question of the form in which notice was served and found no fault with the same.
17. As regards, Preet Singh, it has been mentioned in the complaint that Preet Singh is the owner of M/s East West Linkers and it is mentioned in the body of the complaint several times that accused persons are carrying illegal industrial activity and are violating the provisions of Environment (Protection) Act, 1986. Even the license issued by Inspector Factories referred by learned counsel for petitioner is in the name of Mrs. Preet Singh and East West Linkers. As per Section 15, any person who fails to comply with or contravenes any of the provisions of the Act or the Rules made or Order of direction issued thereunder is liable.
18. Admittedly, documents filed by petitioners (i.e. Annexure A, B & C and being relied upon by him) during arguments in the revision petition before this court were not part of record and were neither considered nor could be considered by the trial court, which has to consider only document filed by prosecution. Even otherwise, disputed question of facts as to whether the petitioners were having license from the MCD or when it was issued, it was renewed and what were the terms and conditions and/or fees was deposited or not are the disputed questions of fact which can be determined only by the trial court after recording evidence and giving an opportunity to the parties. For the present purpose, it is noteworthy that license which was earlier being relied upon on behalf of the petitioners was issued by the office of the Chief Inspector of Factories, Labour Department, stated to have been issued on 15th September 1981. The said license has been granted in the name of "Smt. Preet Singh for M/s East West Linkers" and it East West Linkers vs Kuldeep Singh Tomar Page 10 out of 12 Case No. 58277/2016 mentions maximum number of workers on any day as '50' and maximum installed power capacity as 2.5 HP whereas as per inspection report of the DPCC dated 10th February 2009 as well as report dated 26th February 2013 on record show the details of the power connection as 150 KW, which on the face of it violates condition of license.
19. Moreover, this court is in agreement with the submission advanced by Sh. Sawhney, Ld counsel for DPCC that at the left hand bottom of document Annexure A, mentioned that the license to work a factory issued by Inspector, Factories and being relied upon by the counsel for the petitioner was valid till the plot/flat was offered to the license holder and in the present case, admittedly, petitioner was offered an alternative plot for relocation, however, the same offer was not availed of by the petitioner by not depositing full charges and the factory is still being run at the same premises. No satisfactory reason was assigned on behalf of petitioner as to why the factory was not shifted despite the fact that 250 Sq. M. Industrial plot was allotted in Bawana in Relocation Scheme of Commissioner of Industries and why charges were not deposited. Moreover, copy of the license placed on record by the counsel for the petitioner during arguments is an adhoc license for non confirming area and valid till 31st March 2003 only and on the same very license, it is mentioned that adhoc license does not authorizes the petitioner for getting any license from any municipal department and as such, no valid license can be said to be issued to the petitioner. It is also true that merely depositing of charges under self assessment method cannot entitle the petitioner to claim that the land use had actually been converted from residential to the industrial.
20. Last but not the least, as per Master Plan of Delhi MPD 2021, Chapter 7.3 and 7.4, household industries are permitted in residential area having maximum East West Linkers vs Kuldeep Singh Tomar Page 11 out of 12 Case No. 58277/2016 five number of workers and maximum industrial power load of 5KW and industrial unit is only permitted after provisional registration by the Government of NCTD and separate industrial electric connection and Municipal License, was necessary to set up even the household industry. The master plan has been issued and prepared by the Central Government and has provided measures as regards restriction of the areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to safeguards ar provided u/s 3 of Environment Protection Act, 1986.
21. Having regard to the totality of facts and circumstances, this court finds that impugned order is reasonable and there is no illegality, procedural irregularity and impropriety. No interference is, therefore, called in the impugned order whereby petitioners are summoned to face trial for the offence punishable u/s 3 punishable u/s 15 of the Environment Protection Act. Revision petition being devoid of any merit is dismissed. TCR be sent back alongwith a copy of this order. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT VINAY KUMAR KHANNA
th
on 30 September 2016 Special Judge-CBI (PC Act)-06
THC/Delhi
East West Linkers vs Kuldeep Singh Tomar Page 12 out of 12