Case: Gujarat Pollution Control Board Vs. M/s Nicosulf Industries &amp; Export Pvt. Ltd. &amp; Others

of the Constitution. It is, therefore, submitted that it was never challenged by the respondents 1 and 2. They cannot be permitted to urge that the Act was not passed pursuant to Article 250 of the Constitution. The passing of the resolution by the State Legislature of two or more States is a condition precedent for investing the Parliament with the power to make a law on that topic or matter and then it shall be lawful for the Parliament to make a law for regulating that matter accordingly. The law so made or enacted by the Parliament under Article 252(1) of the Constitution will apply only to those States whose legislatures have passed resolutions under that provision and also to such States which have afterwards adopted the same by resolution passed by the legislatures of such States in that behalf. Therefore, at the relevant point of time the unamended Section 49 was applicable and delegation to the chairman of the power to sanction prosecution by the Board was valid and effective. Even otherwise resolution dated 27.3.1984 clearly establishes that the Board delegated to the Chairman the power of sanctioning prosecution. Therefore, this was valid and effective even for the purpose of amended Section 49(1)(a) of the Act. Section 49 is in two parts namely (i) a complaint made by the Board and (ii) by any officer authorized in this behalf by it. The delegation of the power of sanctioning prosecution in favour of the Chairman can always be read as the power of authorizing prosecution after Section 49 was amended. 10. The Inspection Report clearly establishes the name of accused No.3 as the person in charge of the unit. In the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the Code) A-3 has clearly admitted that the same is true. Reference is also made to Section 21 which deals with power to take samples of effluents and procedure to be followed in connection therewith. 11. In response, learned counsel for the respondents 1 and 2 submitted that the High Court had clearly recorded that the conditions required compliance with the water standards if water over-flowed from the solar evaporation pans and the sample taken was from the drain that ran from the factory to the evaporation pans. On the aforesaid basis, the High Court came to hold that there had been no violation of the terms of the Water Act. The submission of the prosecution that the water flows from the factory to the pans in a kachcha drain thereby there was violation of conditions is not based on materials in the sense that it was not the basis for the complaint and was also not the basis of judgments of courts below. 12. Learned counsel for the respondent submitted that the question is whether the amended provisions apply and the authorization has to be by the State Board. That question need not be gone into as the prosecution was required to prove that the solar evaporation pan maintained by the company had over flown and the over flown effluent did not conform to the tolerance limits prescribed. The documents on record clearly establish that the company was discharging its effluent into the drain leading to the solar evaporation pan i.e. into the solar evaporation pan. There was nothing to show that any sample of any over flown effluent has been taken. It is pointed out that the sample taken on 22.6.1989 is not of over flown effluent, but of effluent which was on the way to the solar evaporation pan for further treatment. It is also submitted that Section 21(5) obliges the Board to forward the sample for the purpose of analysis. In the instant case the sample was taken on 22.6.1989 and was received on 28.6.1989. The delay has not been explained. 13. There is no substantial difference in the language of the amended Section 49. The High Court proceeded on the basis that the complaint was illegal since the complaint filed was not duly authorized. Though the High Court proceeded on the basis of amended Section 49, the amended as well as un-amended provisions require the State Board to file a complaint or to authorize any of its officers to file the complaint. The authorization has to be by the State Board. According to the Board under Section 11-A of the Act it had delegated to the Chairman the power to authorize an officer to file a complaint. Resolution dated 27.3.1984 refers to the delegation of power to sanctioning prosecution. The High Court has held that the power to sanction a complaint is distinct from the power to authorize the complaint. This view is clearly unsustainable for the reason that if the provisions are construed in the context that as a check over the complaint filed, then the grant of sanction to file a complaint would be in law an authorization to file the complaint. The stand of the appellant that the difference between sanction and authorization in the context of provisions of the Act and incontra-distinction to the provisions of IPC and the Code is more semantic than real. The stand is well founded. The appeal can be disposed of on the ground that factually there is nothing to show that the sample collected was from the over-flown effluent. The evidence on record clearly shows that the effluent was on the way to the solar evaporation pans for further treatment. The said effluent would never meet the parameters prescribed as it is yet to be treated. Thus, the alleged breach of condition No.4 has not been proved. On that ground alone the appeal deserves to be dismissed. In view of this conclusion it is not necessary to go into the other aspects as to what is the effect of the resolution of the State notified on 28.10.1999 i.e. after the date of amendment of the statute of Section 49 on 29.9.1999. The authorization by the Chairman was on 18.8.1989.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]There is no substantial difference in the language of the amended Section 49. The High Court proceeded on the basis that the complaint was illegal since the complaint filed was not duly authorized. Though the High Court proceeded on the basis of amended Section 49, the amended as well as un-amended provisions require the State Board to file a complaint or to authorize any of its officers to file the complaint. The authorization has to be by the State Board. According to the Board under Section 11-A of the Act it had delegated to the Chairman the power to authorize an officer to file a complaint. Resolution dated 27.3.1984 refers to the delegation of power to sanctioning prosecution. The High Court has held that the power to sanction a complaint is distinct from the power to authorize the complaint. This view is clearly unsustainable for the reason that if the provisions are construed in the context that as a check over the complaint filed, then the grant of sanction to file a complaint would be in law an authorization to file the complaint. The stand of the appellant that the difference between sanction and authorization in the context of provisions of the Act and incontra-distinction to the provisions of IPC and the Code is more semantic than real. The stand is well founded. The appeal can be disposed of on the ground that factually there is nothing to show that the sample collected was from the over-flown effluent. The evidence on record clearly shows that the effluent was on the way to the solar evaporation pans for further treatment. The said effluent would never meet the parameters prescribed as it is yet to be treated. Thus, the alleged breach of condition No.4 has not been proved. On that ground alone the appeal deserves to be dismissed. In view of this conclusion it is not necessary to go into the other aspects as to what is the effect of the resolution of the State notified on 28.10.1999 i.e. after the date of amendment of the statute of Section 49 on 29.9.1999. The authorization by the Chairman was on 18.8.1989.