DPCC vs M/s GTK Road Industrial  Estate CETP Society & Ors.


O R D E R

16.08.13

1. Vide this order I shall dispose of the application filed u/s 245(2) Cr.P.C read with section 258 Cr.P.C filed on behalf of accused no.2 S.P. Gupta seeking his discharge as well as point of framing of notice.

2. The discharge is sought on the ground that there is utter misuse of provisions of law by skipping provisions of Section 33­A of the Water (Prevention & Control of Pollution) Act and even before exhausting remedy available under Clauses D (18) & D(19) of the Agreement dated 20.07.05. It is further alleged that there is false allegation in the complaint that the accused society was holding a permission to establish and operate till 26.01.07 and failed to obtain its renewal. It is further alleged that the accused society made a representation to the complainant but without addressing the issues raised therein, the present complaint has been filed against the applicant/accused. It is further alleged that plant is owned and constructed by the Government itself and society is only running the treatment plant. The fresh inspection reports conducted by the department annexed with the present application clearly shows that the discharge of treated water is as per the desired EPA Standards of the complainant. The accused society was never under obligation to obtain, consent from the complainant department for running the plant in question. DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 1

3. It is DSIDC & DJB which is operating agency and office bearer of the accused society are senior citizens working on honorary basis and is not a beneficiary from this project in any manner. Even the agreement dated 20.07.05 had already expired on 19.07.10. and accused society is no more bound to do anything after the expiry of the said agreement. The representation dated 11.03.11 was submitted with the complainant department to relieve the accused society from its responsibility but of no avail. Even a meeting was held on 18.05.11 with the Commissioner of Industries for the purpose of clarification that no permission is required to the society in view of section 25 of Water (Prevention & Control of Pollution) Act but he refused to give a clarification in writing. Even in accordance with the agreement dated 20.07.05, complainant was to provide space for storage of solid waste latest by 31.12.05 as per serial no.17 of the said agreement but no space was provided. This is willful non­ performance of the authorities and for the said Act, they should be punished. Instead of taking responsibility, present complaint has been filed maliciously. Even, the complainant maliciously concealed that the appropriate authority had all powers in the agreement dated 20.07.05 to substitute any other NGO for its operation & maintenance if the working of the society was not found satisfactory but no such step was taken.

4. It is further alleged that there is an arbitration clause clause in the agreement dated 20.07.05 and before initiating any prosecution, they were duty bound to invoke the arbitration clause. It was the duty of the DSIDC to take all statutory DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 2 permission/clearance and to renew the permission, if any, and thus applicant/accused is not responsible for any statutory lapses and is entitled for discharge.

5. Reply to the application was filed denying all the material facts. It is further stated that the application is pre­mature. It is further stated that event the pre­ charge evidence is not recorded u/s 244 Cr.P.C. It is further stated that under section 245 Cr.P.C, the court is to see only prima facie case on the basis of unrebutted evidence. In the present case, even no evidence was recorded at the pre­summoning evidence stage, the complainant being government official. Thus, it is stated that in case the application will be allowed, it would amount to recalling the summoning order as nothing material has been brought on record after the stage of summoning except appearance of the accused and accepting them on bail.

6. It is further stated that the accused society is bound by the provisions under 'The Delhi Common Effluent Treatment Plants Rules, 2001 (DCETP Rules). It is further stated that it was the duty of the accused society to manage, maintain, operate the CETP in accordance with the prescribed standard of the various Act including Water (Prevention & Control of Pollution) Act (Water Act) to obtain necessary clearances under the Environment (Protection) Act (E.P. Act), Water Act and Air (Prevention & Control of Pollution) Act (Air Act). It is further stated that in view of the clear­cut statutory provisions, the agreement can not and does not override the provisions of the DCETP Act and the DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 3 DCETP Rules. Moreover, the complainant has never been the party to the alleged agreement and therefore, agreement has no binding effect upon the complainant. It is further alleged that that even the clause 22 of the said agreement makes it clear that it is the responsibility of the accused society to comply various laws applicable to the society and for running the Common Effluent Treatment Plant (CETP). Present complaint was filed because of contravention of provisions u/s 25/26 read with section 44/47/49 of Water Act and u/s 21/22 read with section 37/40/43 of the Air Act and u/s 12/17/19 and 23 of the DECTP Act read with rule 3(4) & (10) of DECTP Rules. Thus, it is prayed that application filed on behalf of accused no.2 is premature and is not maintainable on merits as well and therefore, same is liable to be dismissed.

7. I have given my thoughtful consideration to the submissions advanced on behalf of parties and gone through the records as well as relevant provisions of law. In support of his claim and contentions, the complainant has relied upon the judgment reported in (a) 2011 (3) Crimes 298(All) Allahabad High Court, titled as Madhu Shankar and Ors. Vs State of U.P. And Anr. (b) 2010(4) Crimes 345 (P & H), titled as Sunil Lamba vs. State of Haryana and another.

On the other hand complainant has also placed reliance upon the judgments reported in (a) 1977 CRI. L.J. 1370 in case titled as Hukamichand Devkisen Sarda and others vs Ratanlal Rupchand Heda and others (b) (2009) 1 Supreme Court Cases 407 in case titled as National Small Industries Corporation Ltd. Vs State (NCT of Delhi) and others (c) (2009) 2 Supreme DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 4 Court Cases 147 in case titled as U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi and another (d) AIR 2005 Supreme Court 359 in case titled as State of Orissa vs. Debendra Nath Padhi.

8. Before adverting to the rival submissions of the parties, it would be appropriate to reproduce the relevant provisions i.e. Section 24, 25 & 26 of Water Act, Section 21 & 22 of Air Act, and Section 3(4) & (10) of DCET Rules.

Section 24, 25 & 26 of Water Act.

24. Prohibition on use of stream or well for disposal of polluting matter, etc.­ (1) Subject to the provisions of this section, ­

(a) no person shall knowingly cause or permit any poisonous noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any [stream or well or sewer or on land], or

(b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.

25. Restrictions on new outlets and new discharge - [(1) Subject to this provisions of this section, no person shall, without the previous consent of the State Board, ­

(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or

(b) begin to make any new discharge of sewage

26. Provision regarding existing discharge of sewage or trade effluent. ­ Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a [stream or well or sewer or on land], the provisions of section 25 shall, so far as may be, apply in relation to such person as they apply in relation to the person referred to in that section subject to the notification that the application for consent to be made under sub­ section (2) of that section [shall be made on or before such date as may be specified by the State Govt. by notification in this behalf in the Official Gazette]. DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 5 Section 21 & 22 of Air Act

21. Restrictions on use of certain industrial plants. ­ [(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control] area.

22. Persons carrying on industry, etc., not to allow emission of air pollutants in excess of the standards laid down by State Board. ­ No person [***] operating any industrial plant, in any air pollution control area shall discharge or cause or permit to be discharged the emission of any air pollutant in excess of the standards laid down by the State Board under clause (g) of sub­ section (1) of section 17.

Section 3(4) & (10) of DCETP Rules

3.Functions to be performed by CETP Societies under section 4. * *

(iv) To manage, maintain and operate the CEPT In accordance with the prescribed standard of the Environment (Protection) Act, 1986 (29 of 1986), the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974), and the Air (Prevention and Control of Pollution) Act, 1981 (14 of 1981), * *

(x) To obtain the necessary clearances which are required under the Environment (Protection) Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 or under any other Act/Rules relevant to the subject.

Further, it is relevant to reproduce the extracts of agreement relied upon by the applicant/accused and complainant. Relevant clause of the agreement are reproduced as below:­

17.Sludge management within the CETP and its transport to the temporary hazardous waste storage site will be the responsibility of the CETP Society. The Government shall identify storage temporary site for hazardous waste and ensure it is fully operational by December 31, 2005 and after one year the sludge/hazardous waste will be disposed of at the hazardous waste disposal site/facility.

18.Arbitration Clause: In the even of any dispute arising out of the operation of this agreement, the same shall be settled as follows:

i. One Arbitrator shall be nominated by the Commissioner of Industries ii. One Arbitrator shall be nominated by the Society DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 6 iii. Two Arbitrators so appointed shall appoint another Arbitrator, whose decision shall be final and binding on all the parties.

22.The Society shall be solely responsible for complying/observing all existing laws like Labour, EPF, Safety regulations etc. as amended time to time.

9. The first contention raised is that the DCET Rules, 2001 was enacted for recovery of dues as arrears of land revenue in respect of the capital and recurring costs of common effluent treatment plants set up in the Industrial Estates in the National Capital Territory of Delhi and thus, there can be no prosecution. However, this contention has no merits. If the entire scheme of the said Rule is read together, it is clear that beside the aforesaid duties, the appropriate authority is bound to check the appropriate functioning of the apparatus, their installation and to give directions time to time to furnish the information for carrying on any industry, operation, process, or treatment and disposal of system including domestic sewage and such direction can be given to any occupier/society/person, officer or authority. Further, if there is non­ compliance or there is contraventions of provisions of the said Rules that is itself an offence punishable u/s 19 of the said Rules.

10.The next argument is that CETP Society are not bound to apply for consent under the E.P. Act, Water Act and Air Act but it is for the appropriate authority to obtain necessary permission. It is further contended that even in view of the agreement dated 20.07.05, it was the duty of the appropriate authority to obtain necessary permission prior to running any CETP system. However, said contentions are misplaced. Bare perusal of section 3 of the Delhi Common Effluent Treatment Rules, 2001, clearly mandates that it would be the function DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 7 of CETP Society to obtain the necessary clearances which are required under the E.P. Act, Water Act and Air Act. It would be further the duty of the CETP Society to manage, operate and maintain the CETP in accordance with the standards prescribed in the said Acts.

11.It is settled principle of law that any agreement which is contrary to the statutes is void to the extent it is not in conformity with the provisions of law. There can be no estoppal against statutes. Thus, reliance placed by the applicant/accused upon the agreement dated 20.07.05 is of no help. Further, from the record, it is clear that the present complainant was neither a party nor in any way is connected with the said agreement replied upon by the applicant/accused. Since as per the statutes, it is the duty of the society to obtain necessary clearances, therefore, society can not be relieved from its duties under pretext of agreement.

12.The next argument advanced is that CETP Society is not an industry within the meaning of 2(k) of Air (Prevention & Control of Pollution) Act and therefore, there is no question of discharging untreated effluent. It is further contended that CETP plants run by the society is only discharging the treated effluent and there are report subsequent to the inspection wherein it is clearly mentioned that that there is no discharge of effluent by the accused society. In support of the said contention, applicant/accused has relied upon the 33 reports annexed with the application. So far as the documents annexed are concerned, these documents are in respect of subsequent period. Moreover, even charge has DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 8 not been framed yet. Therefore, the defence of the accused can not be taken into consideration at this stage. So far as the society being industry or not is concerned, it is clear from the definitions of CEPT Society as provided in section 6 of Delhi Common Effluent Treatment Act, 2000. It has been provided that CEPT Society can be constituted by an Industrial Estate or Industrial Estates in Delhi for performing of such functions including setting up and operating a CETP for the units in such industrial estate or estates. Thus, definition of society makes itself clear that applicant/accused is duty bound to get the effluent treated before its discharge. Thus, by necessary implication, CETP Society is bound to perform the duties which were casted upon industries i.e to discharge the effluent only after its treatment.

13.Next arguments have been advanced that according to rule 23 of Delhi Common Effluent Treatment Rules, 2001, no court shall take cognizance except on the complaint filed on behalf of the appropriate authority and since the present complaint has not been filed on behalf of the appropriate authority i.e Commissioner of Industry or any other officer not below the rank of Joint Director, therefore, present complaint is liable to be dismissed. The said contention is misplaced. Present complaint has been filed by DPCC through Sh. Surender Singh, Environmental Engineer u/s 25/26 read with section 44/47/49 of Water (Prevention & Control of Pollution) Act and u/s 21/22 read with section 37/40/43 of the Air (Prevention & Control of Pollution) Act and u/s 12/17/19 and 23 of the Delhi Common Effluent Treatment Plant Act, 2000 read DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 9 with rule 3(4) & (10) of the Delhi Common Effluent Treatment Rules, 2001 as well. It is clear from the para no.16 of the complaint that the complainant is the serving Environmental Engineer and thus authorized to sign and prosecute the present complaint which meet out the requirement as prescribed in Water (Prevention & Control of Pollution) Act and Air (Prevention & Control of Pollution) Act for filing of the complaint. Thus, complaint is competent to file the present complaint.

14.Next contention raised is that complaint is premature as no notice u/s 33­A of Water Act was given prior to initiating prosecution nor matter was referred for arbitration in view of arbitration clause. So far as arbitration is concerned, that is not binding upon complainant and DPCC is not a party to the contract. Further, by virtue of the provision u/s 33­A of Water Act, the appropriate authority is empowered to issue show cause notice for appropriate running of CETP. Lastly, it has been argued that though no pre­charge evidence is led but in view of provision u/s 45(2) Cr.P.C., present application is maintainable. No doubt, law is settled in this regard. The application us/ 245(2) Cr.P.C is maintainable even prior to pre­charge evidence. However, in the present case, complaint was filed by the government officer and he was exempted from his examination u/s 200 Cr.P.C. being a public servant. Thus, case is at the stage where it was at the time of summoning as no pre­charge evidence has been led yet. In view of same, allowing the application u/s 245(2) Cr.P.C will amount to recall of the summoning order at least at this stage. It is respectfully DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 10 observed that the judgments relied upon by the accused is not applicable to the peculiar facts and circumstances of the present case. In the light of the aforesaid discussions, the application in hand having no merit and appears to have been filed with a view to delay the proceedings. Accordingly, same is dismissed with cost of Rs.10,000/­ to be deposited with DLSA.

Put up for pre­charge evidence on 14.10.13.

(D.K. SHARMA) ACMM (Spl. Acts)/CENTRAL DELHI/16.08.13 DPCC vs M/s GTK Road Industrial Estate CETP Society & Ors. 11