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Full Case Details
M/s. Delhi Bottling Co. Pvt. Ltd. (for short ‘the Company’), petitioner
No. 1, has been carrying on the business of preparation of soft drinks under the trade names of
Gold Spot, Limca, Thums Up, Rimzim and Soda Water etc. at their factory premises No. 60,
Shivaji Marg, New Delhi. They are discharging trade effluents which ultimately fall in the
stream i.e. river Yamuna. Shri S.K. Arya, petitioner No. 2 is the Plant Manager of the
Company. The Company duly obtained consent order under the provisions of Ss. 25 and 26
of the Water (Prevention and Control of Pollution) Act, 1974 (for short ‘the Act’). A
complaint under S. 33(1) of the Act was filed by the Central Board for the Prevention and
Control of Water Pollution, respondents, against the petitioners. It was alleged that the
Company has neither put up the treatment plant nor has started any preliminary step in that
regard. It was further alleged that a sample of the trade effluents of the Company was lifted
by the officials of the Board on May 16 1984 in the presence of Mr. D.L. Khosla, a
representative of the Company and the sample on analysis has been found as not conforming
to the parameters of the consent order of the Company. It was prayed that the Company be
restrained from causing pollution by discharge of trade effluents till the company sets up the
required treatment plant and conforms to the quality of trade effluents according to the
parameters as provided in the consent order. Shri Naipal Singh, Metropolitan Magistrate,
Delhi, after obtaining the reply of the petitioners to the complaint of the respondents and after
hearing the parties, passed the impugned order dated August 8, 1984 accepting the application
of the respondents and restraining the petitioners from causing pollution of the stream by
discharging the trade effluents till the required treatment plant is set up and conforming the
quality of trade effluents according to the standards prescribed by the Board in its consent
order as renewed on November 26, 1981. Feeling aggrieved by this order of the learned
Metropolitan Magistrate, the petitioners have filed this petition under S. 482, Cr.P.C.
- Mr. R. Mohan, learned counsel for the respondents, submitted that for passing an order
under S. 33 of the Act there is no need that the samples of the effluents must be lifted from
the factory premises and got analysed as per the provisions of S. 21 of the Act. As such, it
was not necessary for the officials of the Board to divide the sample lifted into two parts and
to get the same analysed from the laboratory established by the Delhi Administration as per
the provisions of S. 21(4) of the Act. The learned Magistrate has not dealt with this aspect of
the matte in his impugned order. However, I think that it is necessary to go into this question
for a proper decision of the case. Mr. Mohan submitted that as per S. 33 of the Act the Board
has the power to lift a sample on a ground other than the one that the water in the stream is
polluted by reason of disposal of any matter therein or of any likely disposal of any other
matter therein. It is submitted that that being so and S. 21 being confined to the lifting of
samples only when the stream is likely to be polluted by reason of disposal of any matter
therein or of any likely disposal of any matter therein, provisions of S. 21 do not come into
operation for lifting of a sample for the purposes of getting an order under S. 33 of the Act. I
do not find any force in this submission. The Scheme of the Act shows that S. 21 is a
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provision of general application governing the matter of lifting of samples in all cases
including the cases for the purpose of obtaining an order under S. 33 of the Act. The heading
of S. 21 is “Powers to take samples of effluents and procedure to be followed in connection
therewith.” S. 21(1) incorporates the powers of the State Board or of the officers of the State
Board with regard to the lifting of samples of water from any stream or well or samples of any
sewage or trade effluent which is passing from any plant or vessel or from or over any place
into any such stream or well. Sub-s. (2) of S. 21 states that the result of any analysis of a
sample of any sewage or trade effluent taken under sub-s. (1) shall not be admissible in
evidence in any legal proceedings unless the provisions of sub-ss. (3), (4) and (5) are
complied with. The proceedings under S. 33 of the Act are obviously legal proceedings under
the Act. It is thus clear that the sample must be lifted in accordance with the provisions of S.
21 of the Act when only its analysis could be admissible in evidence in the proceedings under
S. 33 of the Act. Further Ss. 32 and 33 are the only two provisions of the Act where under
samples may be lifted by the Board. Whereas S. 32 provides for emergent cases, S. 33 is the
normal provision empowering the Board to make applications to courts for restraining
apprehended pollution of water in streams or wells. So to say that for taking action under S.
33 which is a normal provision in which the lifting of samples is involved that the provisions
of S. 21 are not operative is wholly fallacious. - We have now to see as to how far the learned Magistrate was right in coming to the
conclusion that though the provisions of S. 21 were applicable to the case, yet the sample was
not required to be divided into two parts and got analysed as per the provisions of sub-s. (5) of
S. 21 because in his view no appearance was put in on behalf of the Company before the
officials of the Board at the time of the taking of the sample by them. I may say at the very
outset that this conclusion of the learned Magistrate is wholly erroneous. The petitioners in
para 2 of the preliminary objections and para 17 of their reply to the complaint clearly stated
that the sample was not divided by the officials of the Board into two parts and no part thereof
was given to the Company’s representative in spite of his request in that behalf. The
Respondent-Board filed a rejoinder to this reply of the petitioners. They, however, did not
controvert these allegations of the petitioners therein. The Board in fact in their rejoinder did
not reply to the allegations of the petitioners in their reply parawise and the Board nowhere
controverted the said allegations of the petitioners. No affidavit was filed by either side
before the learned Magistrate in support of their respective claims. In such a situation the
aforesaid allegations of the petitioners had to be taken as not controverted and thus admitted.
The learned Magistrate came to the conclusion that the copy of the notice for the inspection
by the officials of the Board was duly served on Shri S.K. Arya, petitioner No. 2. He,
however, took the view that no appearance was put in on behalf of the petitioners before the
officials of the Board at the time when they lifted the sample. This observation of the learned
Magistrate is wholly against the true facts. The petitioners filed a photo copy of form No. 12
which was available on the record of the learned Magistrate. At the foot of this document
there is nothing “Received Form 12” and which purports to be signed by one D.L. Khosla on
the same date, i.e. May 6, 1984, the date on which the samples were lifted. This receipt was
given by Shri Khosla in token of the Board’s having delivered a copy of Form 12 to him who
was the agent of the petitioners present before the officials. The learned Magistrate did not
deal with the matter on the basis of the aforesaid allegations which are in the nature of the
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pleadings of the parties. The learned Magistrate observed that as no presence was put in on
behalf of the Company, so the question of there being any request by the Company for
dividing the samples into two parts did not arise. This conclusion of the learned Magistrate is
not sustainable in view of my above finding that Shri Khosla was duly present at the time
when the sample was lifted. Further in view of the said pleadings of the parties it has to be
taken that a demand was also made by the said representative to the officials of the Board to
divide the sample into two parts and to get the same analysed in accordance with S. 21(5) of
the Act, but that request was not acceded to. I accordingly hold that the officials of the Board
were not justified in getting the sample analysed from a laboratory only recognised by the
Board instead of getting the same analysed from the laboratory of the Delhi Administration
and without complying with the requirements of sub-s. (5) of S. 21 of the Act. That being so,
the conclusion that the petitioners were discharging effluents in the stream which were likely
to cause pollution is not sustainable. Consequently the impugned order is bad and is liable to
be set aside. - The learned Magistrate also took note of the fact that the petitioners had not erected any
treatment plant as per Cl. 5 of the consent order. Mr. Sarin, learned Counsel for the
petitioners, submitted that there was no absolute obligation on the part of the petitioners to
erect a separate treatment plant so long as they were not discharging the effluents contrary to
the parameters as provided in the consent order. Be that as it may, the true interpretation of
the impugned order is that a restraint order has been passed against the petitioners restraining
them from discharging their effluents in the stream which do not conform to the quality as per
the standards prescribed by the Board in its consent order and thereby causing pollution of the
stream. We cannot read in between the order that a direction has been given to the petitioners
to erect a treatment plant. Such a direction is also perhaps not envisaged by the provisions of
S. 33(1) of the Act. S. 33(1) only provides for the passing of a restraint order by the court
against the Company for ensuring the stoppage of apprehended pollution of water in the
stream in which the trade effluents of the Company are discharged. I, therefore, need not go
into the question as to whether the petitioners’ non-erection of a treatment plant was such an
act on which the impugned restraint order was justified. The restraint order is also not based
on that footing. For the non-erection of the treatment plant the Board has the power to launch
prosecution against the defaulting Company under the provisions of S. 41 of the Act. - In conclusion I accept the petition and set aside the impugned order of the learned
Magistrate.
