HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 11
 
Case :- U/S 482/378/407 No. - 7146 of 2019
 
Applicant :- M/S Rahul Ion Tech Ltd. Thru. Director & Ors.
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. (Environment), Lucknow & Anr
 
Counsel for Applicant :- Shubham Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Singh,J.

Heard Shri Manish Kumar, learned Senior Counsel assisted by Mr. Shubham Tripathi, Advocate appearing for the applicants, Shri Aniruddh Singh, learned A.G.A. for the State and Ashok Kumar Verma for U.P. Pollution Control Board-respondent no. 2.

This application has been filed seeking the following main relief:

"Quash/Set aside the Impugned Summoning Order taking cognizance dated 22.04.2019 in Criminal Complaint No.2900/2018 by the Ld. Special Judicial Magistrate (Pollution), Lucknow, and all consequential proceedings emanating therefrom."

Learned counsel for the applicant has submitted that, admittedly, Complaint Case No.2900 of 2018, under Section 43 of Water (Prevention and Control of Pollution) Act, 1974 (for short ''Act, 1974') had been filed in compliance of the general directions given in Para 9 of the order dated 08.08.2018 passed by National Green Tribunal (hereinafter referred to as the 'NGT') in Original Application No. 231 of 2014 (Doaba Paryavaran Samiti Vs. State of U.P. & Ors.).

Learned counsel for the applicant has further submitted that the impugned order is also erroneous for the reason that the mandatory provision of Section 21 of the Act, 1974 was not complied with. Placing reliance on the judgments passed by the Hon'ble Supreme Court in the cases of Orissa State Prevention and Control of Pollution Board Vs. M/s. Emami Paper Mills Ltd. & Anr., 1994 SCC OnLine Ori 154 as also on the judgment passed by the Delhi High Court in the case of Delhi Bottling Co. Pvt. Ltd. & Ors. Vs. Central Board for the Prevention and Control of Water Pollution, MANU/DE/0492/1986, learned counsel for the applicants has submitted that it was obligatory on the part of the officials of respondent no. 2 to comply the provisions of Section 21 of the Act, failing which entire proceeding is bad in the eyes of law.

It has next been submitted by the learned counsel for the applicants that the aforesaid directions of NGT were challenged by different companies before the Hon'ble Supreme Court also, which were registered as Civil Appeal Diary No. 34619 of 2018, ECE Industries Ltd. Vs. State of U.P. & Ors. and Civil Appeal Diary No. 40950 of 2018, Honda SIEL Power Products Ltd. Vs. State of U.P. & Ors. in which interim protection was given by the Hon'ble Supreme Court vide orders dated 1st October, 2018 and 16th November, 2018 respectively by staying the operation of Para 9 of the judgment and order dated 8th August, 2018 passed by NGT, Principal Bench, New Delhi in O.A. No. 231 of 2014 (supra). Photocopy of the order dated 16.11.2018 produced by the learned counsel for the applicants, is taken on record.

Shri Ashok Kumar Verma, learned counsel appearing for respondent no. 2-U.P. Pollution Control Board, on the other hand, has submitted that the Special Judicial Magistrate (Pollution)/CBI, Lucknow is a notified court by the State Government vide Circular dated 22nd July, 1988. He has further informed that vide Circular Letter No. 41 dated 9th September, 1988, the Registrar of the Allahabad High Court had requested to all the District & Sessions Judge for transferring of all the cases pending under the provisions of Act, 1974 as well as Air (Prevention and Control of Pollution Act), 1981 (for short ''Act, 1981') to the court notified by the State Government by the aforesaid Circular dated 22nd July, 1988.

Submission of the learned counsel for the respondent no. 2 is that in view of the above, the court below is having the jurisdiction to pass the order and there is no illegality in the same.

However, Ashok Kumar Verma has not disputed the fact that the impugned complaint was filed in compliance of the general directions given by the NGT in Para 9 of the order dated 8th August, 2018 passed in O.A. No. 231 of 2014.

Learned counsel for respondent no. 2 has also submitted that in pursuance to the directions of NGT dated 16th January, 2018, the industry was inspected on 08.03.2018 and on the basis of the said inspection report, direction was given in Para 9 vide order dated 8th August, 2018, in pursuance whereof, the impugned Complaint Case No. 2900 of 2018 was filed. Therefore, the ground of the learned counsel for the applicants that the provisions of Section 21 of the Act, 1974 was not complied, does not have force. Learned counsel for the respondent no. 2 has lastly submitted that as per the provisions of Section 47 of the Act, every person, who relates to the function of the Board, is responsible for the prosecution.

Learned A.G.A., Shri Aniruddh Singh has also submitted that there is no illegality in the order and the applicants may appear before the court below and cooperate in the proceedings by placing the version at the appropriate stage.

After considering the arguments of learned counsel for the parties and going through the record, it is undisputed that an application was moved before the NGT, Principal Bench, New Delhi by the Doaba Paryavaran Samiti, which was registered as Original Application No. 231 of 2014 (Doaba Paryavaran Samiti Vs. State of U.P. & Ors.), for seeking relief from pollution in Hindon river and her tributaries, in which a direction was issued by the NGT on 16th January, 2018 to carry out joint inspection on 316 industries by a Committee. In pursuance to the said order, a report had been submitted by the Committee so constituted.

On the basis of the said report, learned counsel appearing for Uttar Pradesh Pollution Control Board had submitted before the NGT, Principal Bench, New Delhi that the Board will initiate prosecution against all those who are found to be responsible for discharge of effluents not meeting the prescribed standards, forthwith. This submission of the learned counsel appearing for Uttar Pradesh Pollution Control Board is recorded in Para 9 of the said judgment dated 8th August, 2018. From a perusal of record as also the photocopy of the order passed in Civil Appeal Diary No. 40950 of 2018 (supra), admittedly, Hon'ble Supreme Court vide order dated 16th November, 2018, has stayed the operation of Para 9 of the order dated 08.08.2018 passed by the NGT, Principal Bench, New Delhi.

The order dated 16.11.2018 passed in Civil Appeal Diary No. 40950 of 2018, is being reproduced as under:

"Permission to file appeal is granted.

Issue Notice.

Tag along with Civil Appeal Diary No. 34619 of 2018.

In the meanwhile, there shall be stay of operation of Para 9 of the judgment and order dated 08.08.2018 passed by the National Green Tribunal, Principal Bench, New Delhi."

From a perusal of the Complaint Case No.2900 of 2018, it is undisputed that the complaint was filed in pursuance of the observations made by the NGT vide its order dated 08.08.2018.

On going through the provisions of Section 21(1) of the Act, 1974, it is explicit that it is only the State Board or any officer empowered by the Board, shall have the power to take, for the purpose of analysis, samples of water from any stream or well or samples of any sewage or trade effluent, which is passing from any plant or vessel or from or over any place into any such stream or well, and for taking such samples, the procedure is prescribed under sub-Sections (3), (4) and (5) of Section 21 of the Act, 1974. It is found that the aforesaid provisions have not been complied, at the time of taking samples.

Let counter affidavit be filed within three weeks. Rejoinder affidavit, if any, may be filed within one week thereafter.

List this case on 30.10.2019 along with application (u/s 482 Cr.P.C.) No.6880 of 2019 for final disposal of the case.

Considering the aforesaid facts and circumstances of the case, till the next date of listing, further proceedings of Complaint Case No. 2900 of 2018 (supra) shall remain stayed.

Order Date :- 01.10.2019 Amit/-