IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 1451 of 2008()


1. K.L.CYRIL, AGED 73, MANAGING DIRECTOR
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. KERALA STATE POLLUTION CONTROL BOARD

                For Petitioner  :SRI.RENJITH B.MARAR

                For Respondent  :SRI.M.K.CHANDRA MOHANDAS,SC,POLL.C.BOAR

The Hon'ble MR. Justice P.BHAVADASAN

 Dated :05/02/2010

 O R D E R
                         P. BHAVADASAN, J.
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                     Crl.M.C. No. 1451 of 2008
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           Dated this the 5th day of February, 2010.

                                   ORDER

This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to have Annexure A complaint quashed.

2. Petitioner is the second accused in C.C. No.871 of 2003 before the Judicial Magistrate of the First Class, North Paravoor.

3. Proceedings originated on a private complaint filed against the accused persons for having committed offence punishable under Section 37 read with Section 40 of the Air (Prevention & Control of Pollution) Act, hereinafter referred to as the Act. The allegation is that the first accused, which is an industry, has conducting its affairs without complying with the directions issued by the Department and without valid consent of the second respondent herein under the Act. The petitioner would submit that the industry has not  Crl.M.C.1451/208. 2 been functioning since 14.6.2002. On that day an application for renewal of licence was submitted and it was rejected by the second respondent. Even going by the statement made by the second respondent herein, company has not been running from 27.11.2002 onwards. It is therefore clear that the complaint itself is not maintainable. It is also pointed out by the learned counsel for the petitioner that even assuming that what the complainant says is true, still the complaint is not maintainable for the simple reason that it was not laid by a person authorised to do so. Learned counsel drew the attention of this court to Section 40 of the Act and relied on the decisions reported in Mangulal Chunilal v. Manilal Maganlal (AIR 1968 SC

822) and A.K.Roy v. State of Punjab (AIR 1986 SC 2160) to point out that the complaint is not maintainable.

4. Learned counsel appearing for the second respondent made available a notification issued, which showed the persons, who are competent to lay the complaint.

Crl.M.C.1451/208. 3

5. This petition will have to be succeeded on a very short ground. Section 43 of the Act reads as follows:

"43. Cognizance of offences:- (1) No court shall take cognizance of any offence under this Act except on a complaint made by:

(a) a Board or any officer authorized in this behalf by it; or

(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint to the Board or officer authorized as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

(2)Where a complaint has been made under clause

(b) of sub-section (1), the Board shall on demand by such person, make available the relevant reports in its possession to that person: Provided, that the Board may refuse to make any such report available to such person if the same is, in its opinion against the public interest."

Crl.M.C.1451/208. 4

In the decision reported in Mangulal Chunilal's case, it has been held that the person, who files a complaint must show that he has the authority to do so. In the decision reported in A.K.Roy's case, it has been held that in cases where there is specific provision regarding the person, who can lay the complaint or initiate proceedings, that will have to be done only by that person and nobody else. In other words, when a thing is to be done in a particular manner, it can be done only in that way and not in any other way. In the case on hand, even going by the Notification made available by the learned counsel for the second respondent, the person who is competent to lay the complaint is the Chief Environmental Engineer. Annexure A1 complaint has been laid by the Assistant Environmental Engineer. There is nothing to show that he is authorised to lay the complaint. Section 43 enables the Board or any authorized officer in this behalf by it. The Board has only authorised the Chief Environmental Engineer to lay the complaint. The Chief Environmental Engineer has no authority to delegate that  Crl.M.C.1451/208. 5 function to the Assistant Environmental Engineer. Therefore, the court could not have taken cognizance on the basis of the complaint filed by the Assistant Environmental Engineer.

In the result, this petition is allowed, the impugned proceedings are quashed and all further proceedings in C.C. 871 of 2003 before the JFCM, North Paravur shall stand dropped. However, this will not preclude the second respondent from taking such steps as are available to them in law.

P. BHAVADASAN, JUDGE sb.