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

. A complaint under Sections 24, 25, 43, 44 and 47 of the Water (Prevention and Control of Pollution) Act, 1974 (in short the Act) was filed by the Assistant Environmental Engineer on behalf of the Gujarat Pollution Control Board (in short the Board) against a private limited company i.e. M/s Nicosulf Industries & Exports Private Limited-respondent no.1 and its co-directors Kishanbhai M. Narsinh, Mihirbhai G. Virji and Dushyant P. Lejawala alleging inter-alia that the accused nos. 2, 3 and 4 are producing Nicotine Sulphate in their factory and using Tobacco Stuff, Lime, Kerosene and Sulphuric Acid as raw-materials, and during the course of the process of production they are discharging 10,800 litres of polluted water every day. Under sections 24 and 25 of the Act, every industry is compulsorily required to obtain prior permission or approval of the Board for discharging its polluted water used by it either within or outside the industry as per section 25(i) of the Act. Permission was granted by imposing certain conditions to the accused persons. If the industry commits breach of conditions, complaint can be filed, which in the instant case was filed alleging that there was breach of condition no.4, as a result of which, under condition no.7, the consent order automatically lapsed. The accused nos.2, 3 and 4 were said to be responsible officers managing day-to-day affairs of the company. On 22-6-1989, a sample of polluted water was collected from the industry. It was analysed by the Laboratory of the Board, which reported that the effluent did not conform to the prescribed standards. The report of the analyst was given on 8-7-1989. Thereafter, show-cause notice was issued to the accused persons. A complaint was accordingly filed3. The learned Magistrate convicted all the four accused under sections 24, 25, 43 and 44 of the Act4. The judgment of the Lower Appellate Court was challenged on four grounds before the High Court5. The first ground of attack was that the complainant had no authority to file the complaint. Hence, the entire prosecution structure collapsed and order of conviction and sentence against the revisionists cannot be maintained. The second ground of attack was that the offence was alleged to have been committed by the Company and the directors of the company can be held liable only when it is established by the prosecution that the directors were managing day to day affairs of the company. The third attack was that even on merits breach of condition No.4 of the consent or permission order is not established. The last attack was that the sample of alleged polluted water was collected in breach of the provisions of Section 21 of the Act6. Main ground of challenge is that the complainant had no authority to file the complaint and this ground alone was sufficient to set aside the order of conviction and sentence maintained by the first Appellate Court7. Reference was made to the complaint which shows that it was filed by one AA Dalauti, Assistant Environmental Engineer on behalf of the appellant-Board. It was pointed out that Shri Dalauti had no delegated authority as required under Section 49 of the Act and as such the complaint was filed by an incompetent person. Reference was made to Section 49 of the Act in this regard. Specifically with reference to Section 49(i)(a) of the Act, the High Court held that the complaint had not been filed by the Board as defined under Section 2(h) of the Act. Though the High Court felt that on this ground alone the petition was bound to succeed, yet it considered the other aspects and set aside the order of conviction and sentence as imposed.

Reasoning: 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.