State Pollution Control Board, Bhubaneswar …. 1. M/s. Barada Bricks, Khurda 2. Sri Kirtan v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLLP No.02 of 2006 State Pollution Control Board, Bhubaneswar …. 1. M/s. Barada Bricks, Khurda 2. Sri Kirtan Sahoo Vs. ….. Petitioner Mr. S.P. Mohanty, Advocate Opposite Parties Mr.N.K. Das, Advocate CORAM: JUSTICE SAVITRI RATHO Order No. 17. 1.
Decision
ORDER 03.04.2024 (Through hybrid mode) This CRLLP has been filed praying for leave to file the appeal against the judgment dated 28.06.2005 passed by the learned S.D.J.M., Bhubaneswar in 2 (C) CC No. 11 of 2004 acquitting the opposite parties from the offence under Section 37 (1) of the Air (Prevention and Control of Pollution) Act, 1981 (in short ‘The Air Act’). 2. The prosecution case in brief is that the Government of Orissa Forest and Environment Department Notification No. 11480 dated 18.07.2002 had declared the entire State as Air Pollution Control area in exercising of powers conferred upon under Section 19 of the Air Act. After declaration of the entire State as Air Pollution Control Page 1 of 6 area, the same has been brought to the notice of all brick kilns and State crusher units through public notice published in Oriya daily ‘Dharitri’ dated 14.08.2002. As per Section 21 (1) of the Air Act, 1981, the units operating within the Air Pollution Control area were required to submit the application for grant of consent within three months i.e. on or before 18.10.2002. In exercise of power conferred under Section 6 and 25 of the Environment (Protection) Act, 1986, the Ministry of Environment and Forest, Government of India vide Gazette Notification No. GSR 54 (E) dtd. 22.01.2002 stipulated that no moving chimney type brick kiln should operate beyond 30.06.2002 and this has been published by the Board through public notice in the Oriya daily ‘Samaj’ on 23.01.2002 and in the Oriya daily ‘Dharitri’ on 23.02.2002 respectively for information of the brick kiln units of the State of Orissa. During survey, the complainant found that the accused was operating moving type chimney kiln which was in violation of the above notification and also in contravention of Section 21 of the Air Act, 1981. Therefore, direction had been issued for closure of the unit under Section 31 (A) of the Air Act, vide Board Letter No. 12942 dtd. 19.06.2003 (Ext.4) to dismantle the moving chimney forthwith and close operation of the Page 2 of 6 brick manufacturing unit and report compliance to the Board. But on subsequent inspection on 24.12.2003, it was found that the accused was operating the brick kiln willfully in violation of the direction for closure and without obtaining consent from the Board and thereby contravening the provisions of Section 31 (A) and Section 21 of the Air Act for which he was liable to be punished under Section 37 (1) of the Air Act. The copy of the report was communicated to the accused vide letter no. 30877 dated 30.12.2003. 3. The plea of the defence was one of complete denial and false implication. 4. The learned S.D.J.M., Bhubaneswar formulated the following two points for determination. (i) Whether on the relevant day, time and place the accused was operating the kiln willfully contrary to the direction of closure issued by the Board and without containing consent of the Board and thereby contravening the provision of Section 31-A and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 ? (ii) Whether on the relevant day time the accused was the owner of M/s. Barada Bricks ? Page 3 of 6 5. The complainant examined 2 witnesses to prove its case. P.W.1-Sitikanta Sahu and P.W.2-Dinabandhu Gauda are the Environmental Engineers of the Orissa Pollution Control Board. No witness was examined on behalf of the accused. 6. After analyzing the evidence on record, the learned S.D.J.M., Bhubaneswar came to the following conclusion and acquitted the opposite parties from the offence under Section 37 (1) of the Air (Prevention and Control of Pollution) Act, 1981: “8. Besides the above, the evidence of both the P.Ws.1 and 2 reveal that there is no document to show that the accused Kirtan Sahu is the proprietor, owner of the brick unit situated at Bainchua. P.W.1 has not verified if the accused had obtained permission of the Tahasildar to dig earth. He has also not examined the local R.I. to know as to who was the owner of the plot on which the brick unit was operating. The complainant has also not examined any neighbours of the brick unit of the accused nor examined any independent witnesses, to prove that the accused was the real owner/ proprietor of brick unit in question. Hence the complainant has failed to prove the ownership of M/s. Barada Bricks, situated at Bainchua and also failed to prove that accused Page 4 of 6 Kirtan Sahu was the proprietor/ owner of M/s. Barada Bricks situated at Bainchua and also failed to prove that accused Kirtan Sahu was the proprietor/owner of M/s. Barada Bricks.” 7. Mr. S.P. Mohanty, learned counsel for the petitioner submits that the accused-petitioner has received the notices issued in the name of the Barada Bricks as its proprietor and during pendency of the trial, he has applied for consent from the Board for establishing a unit with fixed chimney which shows that the opposite parties were liable under Section 37 (1) of the Air Act and copy of the application has been annexed as Annexure-7 to the CRLLP. 8. Mr. N.K. Das, learned counsel for the opposite parties submits that this Annexure cannot be taken into consideration as it has not been marked as an Exhibit and prosecution was not based on this document. He further submits that the learned court below has rightly held that there is no document to show that the opposite parties were proprietors of the brick kiln at the relevant point of time and there is no material to show that the petitioner was the owner of the plot on which the brick kiln was operating as no neighbor of the unit has been examined to show that the accused was operating the brick kiln. So there is no illegality in the order of acquittal for which Page 5 of 6 leave should not be granted to the petitioner to prefer appeal against the order of acquittal. 9. I have considered the submissions of the learned counsel and gone through the impugned judgment. 10. The view taken by the learned court below is a plausible view for which this Court while entertaining an appeal against acquittal should not substitute its view in place of the view taken by the learned trial court which has been held by a number of decisions of this Court and the Apex Court. That apart, more than 19 years have elapsed since the order of acquittal has been passed. Hence, I am not inclined to grant leave to the complainant to prefer an appeal against the order of acquittal. 11. The CRLLP is accordingly dismissed. 12. Urgent certified copy of this order be granted on proper application. ………………………... (SAVITRI RATHO) JUDGE puspa Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 09-Apr-2024 19:24:45 Page 6 of 6