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           IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH


           Dated this the 3rd day of February, 2014

                           Before

        THE HON'BLE MR. JUSTICE ARAVIND KUMAR

WRIT PETITION Nos. 84238/2013 & 84246/2013 (GM-RES)

BETWEEN:

1       THE LUCKY AGENCIES
        REP BY ITS PROPRIETOR
        SMT. FATIMA SAIDANI MOHAMMED
        AGE: 38 YRS, SY.NO.21/4,
        BILAKHAND
        GULMI ROAD, TQ: BHATKAL
        DIST: UTTARA KANNADA

2       THE LUCKY A.S.FOOD PRODUCTS INDUSTRIES
        REP. BY ITS PROPRIETOR
        MOHAMMAD ALTAF AFRICA
        AGE: 43 YRS, SY.NO.21/4,
        GULMI ROAD, BILALKHAND
        TQ: BHATKAL
        DIST: UTTARA KANNADA
                                    ... PETITIONERS

(By Sri F V PATIL, ADVOCATE)

AND :

1       THE ASSISTANT COMMISSIONER/
        SUB DIVISIONAL MAGISTRATE
        BHATKAL DIVISION
        BHATKAL,
        DIST: UTTARA KANNADA
                          :2:




2     THE TAHASILDAR
      BHATKAL,
      UTTARA KANNADA

3     PANCHAYAT DEVELOPMENT OFFICER
      MUTTHALLI, TQ: BHATKAL
      DIST: UTTARA KANNADA

4     KARNATAKA STATE POLLUTION CONTROL
      BOARD,
      ENVIRONMENTAL OFFICER
      KSPCB, KARWAR           ...   RESPONDENTS

(By Sri. K.S.PATIL, HCGP FOR R-1 & 2
    Sri GURUDEV I GACHCHINMATH, ADV FOR R-3 & 4)
                     ----------

      THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA,
PRAYING TO QUASH IMPUGNED ORDER DTD. 10.06.2013
PASSED BY RESPONDENT NO.1 VIDE ANNEXURE-G AND
ETC.,.

     THESE PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:


                      ORDER

Heard Sri F V Patil, learned Advocate appearing for petitioner, learned HCGP appearing for respondents-1 and 2 and Sri Gurudev I Gachinmath, learned Advocate appearing for respondents-3 & 4. :3:

2. By consent of learned Advocates appearing for the parties, writ petition is taken up for final disposal.

3. Petitioners with intention to establish two industries, claim to have obtained permissions, approvals and licences from the statutory authorities including consent as prescribed under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Water Act' and 'Air Act' respectively for sake of brevity) and contend that despite such consents, approvals and licences issued by the statutory authorities, Special Divisional Magistrate without there being authority of law has assumed jurisdiction under Section 133 Cr.P.C. and has passed the impugned order - Annexure-J dated 25.10.2013 and seeks for quashing of the same.

4. Learned HCGP appearing for the State would support the impugned order contending that Sub Divisional Magistrate is empowered to pass a conditional order as has been done in the instant case on 10.06.2013 - Annexure-G and on account of said order having not been complied, an order of injunction has been passed on 25.10.2013- Annexure-J which is in the interest of general public and he is yet to pass a final order and as such, this Court should not interfere with the said orders.

5. Perusal of the case papers would indicate that undisputedly petitioners have obtained sanction for discharge of effluents both under the Water Act and Air Act as per Annexures-B and B1 dated 31.03.2012 from Pollution Control Board. Said consent has been given by respondent No.4 in exercise of its power under Section 25 and 26 of the Water Act and Section 21 of :5: the Air Act subject to conditions stipulated in the schedule to said consent orders.

6. On a representation given by residents of locality where petitioners have set up their industry, Sub Divisional Magistrate has initiated proceedings against petitioners under Section 133 of Cr.P.C. alleging that public nuisance is being created by the industries run by petitioners. He is said to have conducted spot inspection on 05.06.2013 and issued notices to both petitioners and the complainant to appear before him in the enquiry to be held on 06.06.2013. Said proceedings came to be adjourned to 10.06.2013. On said date the petitioners and their advocate appeared and undertook that they would not create any public nuisance and would stop such nuisance if any. After considering the rival contentions, first respondent passed an order of injunction restraining the petitioners from running the industry within 10 days from the order dated :6: 10.06.2013 - Annexure-G. For reasons best known, consents given under the Air Act or Water Act by fourth respondent to the petitioners to run the industry were not produced before first respondent. However, undertaking was given by petitioners that effluents being discharged by the industry would be stopped. In view of this undertaking given by the learned Advocates appearing for petitioners as well as petitioners in the enquiry conducted by first respondent, order dated 10.06.2013 came to be passed by first respondent directing petitioners to stop all activities of industries run by them as noticed hereinabove. Subsequently, on 25.10.2013 petitioner No.1 has filed a memo before first respondent enclosing consent/permission granted by fourth respondent as also Safety Certificate issued by the Director of Industries and Boilers. Though said memo filed along with documents were received by first respondent, has proceeded to pass the impugned order dated 25.10.2013 - Annexure-J restraining the :7: petitioners from running the industries by issuance of injunction merely on the say of some of residents that petitioners have continued to discharge the effluents.

7. A perusal of order dated 25.10.2013 would clearly indicate that first respondent has not taken into consideration consent given by the fourth respondent as per Annexures-B and B1 under Water Act and Air Act and permission granted by the Director of Industries and Boilers which is at Annexures-C & C1 and has proceeded to direct the petitioners to stop the operation of their industries. In view of the fact that fourth respondent - State Pollution Control Board has already issued consent under the Water Act and Air Act to the petitioner to run their industry, it would be needless to state that fourth respondent and its officers would be empowered to ascertain as to whether conditions stipulated by the fourth respondent on the petitioners- industries while giving consent have been adhered to or :8: whether there is infraction of said conditions stipulated and if there is any public nuisance created, first respondent would be at liberty to proceed against the petitioners in accordance with law. There cannot be any dispute with regard to power to be exercised by fourth respondent or its officers in this regard.

8. Be that as it may. First respondent in order to prevent the breach of public nuisance would undoubtedly be empowered to exercise his powers under Section 133 Cr.P.C. The mandate of Section 133 Cr.P.C. is required to be followed which is not forthcoming from the impugned order, inasmuch as, from the perusal of impugned order at Annexure-J it would clearly indicate that first respondent has not taken into consideration the consent orders issued by the Pollution Control Board - fourth respondent to the petitioner-industries. Impugned order do not disclose as to whether petitioners have complied with the terms and :9: conditions set out in the respective consent orders issued by fourth respondent. It was incumbent upon the first respondent to examine as to whether petitioner- industries have established effluent treatment plant and complied with the conditions imposed under the relevant consent orders or not and thereafter first respondent could have passed orders in accordance with law. However, without undertaking such an exercise, first respondent has proceeded to pass virtually an order of injunction against petitioner- industries.

9. In that view of the matter, I am of the considered view that it would suffice and it would meet the ends of justice if first respondent is directed to examine the claim of petitioners in the light of memo filed by them on 25.10.2013 - Annexure-H and proceed to pass orders afresh in accordance with law after affording opportunity to all parties.

10. For the reasons aforestated, following order is passed:

(i) Writ petitions are hereby allowed.

(ii) Order dated 25.10.2013 vide Annexure-J is hereby quashed.

(iii) The matter is remitted back to first respondent for consideration afresh on merits in accordance with law by keeping in mind the observation made herein above, expeditiously, at any rate, within three weeks from the date of receipt of certified copy of this order.

(iv) First respondent shall not be influenced by any observations made in order dated 10.06.2013 Annexure-G and order dated 25.10.2013 - Annexure-J.

(v) It is needless to observe that fourth respondent would also be at liberty to examine as to whether terms and conditions stipulated in the consent orders given by them to petitioners as : 11 : per Annexures-B1 and C1 is complied with or not and take steps in accordance with law.

(vi) It is also made clear that no opinion is expressed on merits of the claim made in the writ petitions.

(vii) All contentions raised by the petitioners in the present writ petitions are left open.

SD/-

JUDGE *sp