CRA-S-725-SBA of 2000                                                   -1-

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH


                                     CRA-S-725-SBA of 2000

                                     Date of decision: 02.07.2013

Punjab State Board for the Prevention and control of Pollution, Nabha
Road, Patiala

                                                 ........ Appellant

                  Versus



M/s Mahalaxmi Industries and another

                                                 ........ Respondents


CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH


1.    Whether Reporters of the local papers may be allowed to see the
      judgment?
2.    To be referred to the Reporters or not?
3.    Whether the judgment should be reported in the digest?


PRESENT: Mr. D.S. Patwalia, Advocate with
         Mr. Lalit Rishi, Advocate for the appellant.

            Mr. O.P. Goyal, Senior Advocate with
            Ms. Sheena Khanna, Advocate for the respondents.

R.P. NAGRATH, J.

The appellant-Board filed criminal complaint dated 1.10.1991 against the respondent(s) for offences under Section 21/22 read with Sections 37, 39 and 40 of the Air (Prevention and Control of Pollution) Act, 1981 (for short 'the Act'), through its Assistant Environmental Engineer (AEE), who is competent to institute the complaint vide notification issued by the State Board dated 19.11.1985 CRA-S-725-SBA of 2000 -2- (Mark A).

2. It is stated that the accused-industry is a company as defined under Section 40 of the Act which is one of the offences mentioned in the complaint but that is on a wrong notion as Section 40 of the Act only applies to the offences against the company. It is admitted by the Board that the accused/respondent No. 1-M/s Mahalaxmi Industries is a proprietorship concern and accused/respondent No. 2 is the sole proprietor and thus would not fall within the definition of term company as given in explanation to Section 40 of the Act. The explanation to Section 40 of the Act says that for the purposes of this section (a) "company" means any body corporate, and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm. That is otherwise is not a very relevant factor for disposal of the instant appeal because accused/respondent No. 2 being the proprietor of accused/respondent No. 1 admittedly, the appellant-Board shall not have to satisfy the ingredients of Section 40 of the Act, for making those persons as accused, who are responsible to the company for the conduct of business of the company as well as the company on the basis of vicarious liability.

3. The basic allegation against the respondent-accused is that the industry was emitting polluted air in contravention to the provisions of the Act and did not obtain the consent as required by Section 21 of the Act and these violations attract the offence punishable under Section 39 of the Act.

4. The respondent-accused was running business of rolling of CRA-S-725-SBA of 2000 -3- steel round bars with production of 12 T/day and installed re-rollers and a coalfed heating furnace for this purpose, for which herollable steel material is used as raw material, thereby emitting black smoke and SPM discharged through a stack thus causing air pollution. This industry is running since the year 1981.

5. It was further stated that the respondent-industry was discharging the emissions from its premises into the atmosphere, without obtaining previous consent of the Board and without installing any air pollution control equipment. On 13.6.1990, the premises of respondent- accused was visited by PW-1 Sh. N.S. Manshahia, Assistant Environmental Engineer (AEE) who prepared spot inspection report/field data sheet Ex. P-2 finding that the industry is using 2T/day coal as fuel in reverberatory furnace of capacity 1.5 T/hour and, thus, black smoke and SPM discharged through a stack of 60 ft. height causing air pollution in the atmosphere. The industry had not made any effort to install air pollution control devices.

6. The premises of respondent-accused was also visited on 23.3.1991 by Sh. R.K. Goyal, JEE, the authorized officer and it was again found that no such air pollution control device was installed. The Board passed a resolution for prosecuting the respondent-accused in its 76th meeting held on 8.7.1991 and made a complaint before the Magistrate.

7. The respondent-accused was summoned by finding prima facie case and after recording pre-charge evidence, charge was framed against respondent under the aforesaid sections. The respondent-accused did not further cross-examine PW-1 after the charge. The respondent No. CRA-S-725-SBA of 2000 -4- 2 denied all the incriminating circumstances appearing in evidence of the complainant during this examination under Section 313 of Code of Criminal Procedure and himself appeared as DW-1 in defence.

8. After hearing learned counsel for the parties, the learned trial Court acquitted the respondent-accused of the charges framed against him vide judgment dated 7.3.2000, which has been assailed by appellant- Board in this appeal. Leave to appeal was granted by this Court.

9. Learned counsel for the appellant-Board at the outset contended that he has the instructions from the Board, not to pursue this appeal because the industry presently running in the said premises has been granted 'No Objection Certificate' (NOC) and necessary consent under the Act since long. This argument cannot prevail because the appeal has to be heard on merits after leave to appeal was granted by this Court.

10. I have heard learned counsel for the parties. The record of lower Court, has also been perused.

11. It is admitted that the respondent-industry was in existence since September, 1981. This fact is also recorded in the spot inspection report Ex. P-2 dated 13.6.1990. Section 21 of the Act prohibits any person to establish or operate any industrial plant in an air pollution control area without previous consent of the Board. Proviso to this section says that a person operating any industrial plant in any air pollution control area immediately before the commencement of Section 9 of the Air (Prevention and Control of Pollution) Amendment Act, 1987 for which no consent was necessary prior to such commencement, may CRA-S-725-SBA of 2000 -5- continue to do so for a period of three months from such commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application.

12. Section 9 of the Amendment Act of 1987 came into force w.e.f. Ist of April, 1988, vide notification dated 28.3.1988. It is admitted that the respondent-accused had applied for grant of necessary consent under the Act. This is apparent from communication dated 18.12.1990, Ex. P-3, addressed by appellant-Board to the respondent-accused that the industry had not installed any air pollution control equipment, so the consent to the industry under the Act was refused. There is no evidence to prove that this industry continued working after refusal of the consent. In paragraph No. 6 of the complaint it is stated that the premises of this industry was also visited on 23.3.1991, by Sh. R.K. Goyal, JEE, the authorized officer and it was found that no such air pollution control device had been installed. No such report of spot inspection dated 23.3.1991 was proved nor Sh. R.K. Goyal, was examined by the appellant to prove this fact. The appellant-Board examined PW-1 Sh. N.S. Manshaia, AEE only who made spot visit on 13.6.1990.

13. It was vehemently contended for the respondent that spot visit report Ex. P-2 does not show that the industry was infact working nor PW-1 has stated to this effect. The report Ex. P-2 suggests that height of the stack was 60 meters from the ground level but what was the extent of emission of smoke in the area has not been described. There is also no evidence of collection of samples for test by the laboratory etc.

14. Respondent-accused on the other appeared as his own CRA-S-725-SBA of 2000 -6- witness as DW-1 and stated that this industry was leased out to M/s Lok Tilak Steel Industries vide lease deed Mark-DA, for three years i.e. from 5.7.1990 to 4.7.1993. It is submitted by learned appellant's counsel that this is only a copy of lease deed but original has not been produced. PW-1 through whom the complaint was instituted does not deny this fact. He rather stated in the cross-examination that he does not know if the factory was leased out vide lease deed Mark-DA. The contents of the lease deed would show that M/s Lok Tilak Steel Industries, was a partnership concern comprising of Mr. Baldev Raj Chopra and Narinder Paul Chopra as partners and the lease deed is dated 11.7.1990 to be effective from 5.7.1990.

15. PW-1 admitted in cross-examination that M/s Lok Tilak Steel Industries was issued 'No Objection Certificate' Ex. D-4 in the capacity of lessee of respondent-accused No.1. This certificate Ex. D-1 is dated 20.12.1991 and issued for pollution angle. The subsequent correspondence proved by respondent No.2 as DW-1 between the Board and M/s Lok Tilak Steel Industries would support the defence version. Ex. D-2 is a letter dated 8.5.1992, addressed by the Board to M/s Lok Tilak Steel Industries, that the said industry had to make fresh application for consent for the expanded capacity of the Industry. The other correspondence for the years 1992/1993 entered with M/s Lok Tilak Steel Industries is Ex. D-3 and D-4.

16. The next question is whether there was violation of Section 22 of the Act which says that no person operating any industrial plant, shall discharge or cause or permit to be discharged the emission of any air CRA-S-725-SBA of 2000 -7- pollutant in excess of the standards laid down by the State Board under clause (g) of sub-section (1) of Section 17 of the Act. Clause (g) of sub- section (1) of Section 17 of the Act reads as under:-

"Section 17 (1) (1) Subject to the provisions of this Act, and without prejudice to the performance of its functions, if any, under the Water (Prevention and Control of Pollution) Act, 1974, the functions of a State Board shall be -

(a) to (f) XXX XXX XXX

(g) to lay down, in consultation with the Central Board and having regard to the standards for the quality of air laid down by the Central Board, standards for emission of air pollutants into the atmosphere from industrial plants and automobiles or for the discharge of any air pollution into the atmosphere from any other source whatsoever not being a ship or an aircraft:

Provided that different standards for emission may be laid down under this clause for different industrial plants having regard to the quantity and composition of emission of air pollutants into the atmosphere from such industrial plants."

No such standards which may have been laid down are proved on record. It is, therefore, found that the appellant-Board did not lead appropriate CRA-S-725-SBA of 2000 -8- evidence to prove charges against the respondent-accused.

17. The lower Court was, however, impressed by the fact that the respondent-accused was holding valid consent for the period of one year from 6.7.1990 to 5.7.1991 on the basis of letter Ex. P-4 issued by the appellant-Board. That is an incorrect finding as Ex. P-4 is a consent under Water (Prevention and Control of Pollution) Act, 1974 and not under the Act of 1981. The consent was obviously in reference to an application made by respondent-accused at earlier point of time. The columns of date of application are, however, missing in Ex. P-4.

18. From the above discussion, I am of the view that appellant- Board was unable to prove the charges against respondent accused by leading cogent evidence. The acquittal rendered by the lower Court thus cannot be interferred, though for different reasons. The instant appeal is thus dismissed. The bail bonds furnished by respondent No. 2-accused shall stand discharged.

July 02, 2013                                     ( R.P. NAGRATH )
rishu                                                  JUDGE