P.Pramila & Ors vs State Of Karnataka & Anr

The appellants, while being engaged in the business of stocking iron ore, had allegedly violated certain norms prescribed by the Deputy Commissioner under Section 22 of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as the 'Air Act'). The allegation against the appellants was, that they had illegally established iron ore stack yard(s) at various places in Uttara Kannada District. It was alleged, that the appellants had not made provisions for pollution control measures, despite repeated requests and instructions given to them, by the officials of the Karnata State Pollution Control Board (hereinafter referred to as the 'Board'). It was therefore, that CC No.546/2006, CC No.547/2006, CC No.548/2006 and CC No.549/2006 were filed before the Judicial Magistrate, First Class-II, Karwar. The proceedings against the appellants were sought to be challenged by petitions filed under Section 482 of the Code of Criminal Procedure, wherein the appellants prayed for quashing of the above proceedings.

A number of similar criminal petitions, filed by the appellants and others, were sought to be disposed of by the High Court of Karnataka, Circuit Bench at Dharwad (hereinafter referred to as the 'High Court'), by a common order dated 7.1.2009. The above order dated 7.1.2009, is subject to challenge in these appeals. A perusal of the impugned order reveals, that the High Court did not examine the merits of the controversy. To dispose of the merits of the claim raised by the appellants before the High Court, it relied upon an earlier order passed by the High Court on 17.04.2007, disposing of Criminal Petition No. 4760 of 2006. Based thereon, the challenge raised by the appellants before this Court, was also sought to be rejected. The factual position indicated hereinabove is apparent from paragraphs 3 to 5 of the impugned order, which are being extracted hereunder:

The Legal Action initiated in terms of above delegation of powers, the Board shall be kept informed at the next immediate meeting."

Section 43 of the Air Act has already been extracted hereinabove. It is apparent therefrom, that Courts would take cognizance of complaints filed by the Board, or any officer authorised by the Board, in that behalf. The notification/resolution dated 29.3.1989 indicates, that the officer authorised was the Chairman of the Board. The Board could delegate the above power to the Chairman of the Board, because Section 43(1) of the Air Act, authorised the Board to do so. In that view of the matter, either the Board or the Chairman of the Board could have filed the complaints in terms of the mandate contained in Section 43(1) of the Air Act. The power to file the complaint could not be exercised by any other authority/officer. Under the principle of 'delegatus not potest delegare', the delegatee (the Chairman of the Board) could not have further delegated the authority vested in him, except by a clear mandate of law. Section 43 of the Air Act vested the authority, to file complaints with the Board. Section 43 afore-mentioned, also authorised the Board to delegate the above authority to any "officer authorised in this behalf by it". The "officer authorised in this behalf" was not authorised by the provisions of Section 43 of the Air Act, or by any other provision thereof, to further delegate, the authority to file complaints. The Chairman of the Board, therefore, had no authority to delegate the power to file complaints, to any other authority, for taking cognizance of offences under the Air Act. It is apparent, that the determination to initiate action against the appellants, and other similarly placed persons, against whom action was proposed to be taken, by the Chairman of the Board, vide his order dated 4.4.2006, was not in consonance with law. Annexure P-11, appended to Criminal Appeal No. 152/2012 reveals, that the complaint was filed, and the proceedings were initiated before the Judicial Magistrate, First Class-II, Karwar, by the Regional Officer(Deputy Environmental Officer) Sri Gopalakrishna B. Sanatangi, in his capacity as a complainant. The Regional Officer(Deputy Environmental Officer) Sri Gopalakrishna B. Sanatangi, had no jurisdiction to prefer such complaints. Accordingly, we are of the view, that the afore- stated complaints dated 28.04.2006 are liable to be set aside, on the instant technical ground itself. Ordered accordingly.

Since the petitions filed by the appellants, under Section 482 of the Criminal Procedure Code, are being accepted merely on a technical ground, we hereby direct the competent authority, namely, the Board (or the Chairman of the Board) to re-initiate the above proceedings, in consonance with the provisions of Section 43(1) of the Air Act. The process shall positively be re-initiated within two months from today. In case of failure to initiate fresh proceedings within the time stipulated hereinabove, it shall be imperative for the competent authority, to place the reasons for not doing so before this Court, on the expiry of a period of two months. Extension of time, if needed, shall also be sought by the authorities from this Court, by moving an appropriate interlocutory application. Needless to mention, that on re-initiation of the proceedings, the concerned authorities, and the Courts below, shall not take into consideration any observations recorded by us, or the Courts below, while adjudicating upon the merits of instant controversy. It shall be open to the parties to raise all contentions, as may be available to them, in consonance with law.

The instant appeals are allowed in the aforesaid terms.

CORAM :