B V Acharya, Senior Advocate and former Advocate General for Karnataka. Bangalore

The controversy among two sections of lawyers regarding physical hearing and virtual hearing is continuing and the Supreme Court Advocates Association has minced no words when its President stated “we have no choice but to take agitational approach”. Shockingly he told the Judges of the Supreme Court “if your Lordships feel that the Supreme Court is above the law, we will have to take law in our own hands”. This he appears to have said as reaction when the Supreme Court dismissed a writ petition filed by the Bar Association challenging the SOP (Standard Operating Procedure) providing for a hybrid procedure as a temporary solution to the problem created by the two sections of the Bar taking dramatically opposite stand.

The response of the President of the Bar as seen from his above utterances is both unfortunate and disappointing.  It is unthinkable that the President of the Supreme Court Bar Association could use expressions such as “lawyers taking law into their hands”, “judges of the Supreme Court feel that they are above law”, merely because the Supreme Court declined to entertain the writ petition filed by the Association challenging the Standard Operating Procedure dealing with hybrid method, making it clear that they cannot deal with it on the judicial side and that the matter has to be sorted out between the Bench and the Bar on the administrative side.  In the circumstances, agitational approach proposed by the President cannot be appreciated or commended.  

​In every system there will be some advantages as also disadvantages.  One has to weigh them and find a satisfactory solution.  One of the grounds urged by the Delhi lawyers to discontinue virtual hearing is that lawyers from outside Delhi are able to appear even before Supreme Court, offering stiff competition to the local lawyers.  This could hardly be a justification for their demand.  On the other hand, one should appreciate the fact that the practice of virtual hearing all over the country  during pandemic has resulted in emergence of  single Bar in the whole country when a lawyer from any place could appear in any part of the country.  This is a great advantage to anyone including lawyers from Delhi who have been now appearing  before the High Courts and other courts all over the country.  Healthy competition among lawyers practicing in different parts of the country should not be seen as an evil to be avoided. 

​In fact, virtual hearing has advanced the case of litigants in having easy access to justice without the problem of distance.  The mode of hybrid system adopted by the Supreme Court appears to be the best solution to the problem.  Evidently we may note that this system has been in vogue in Karnataka High Court, since some time and the same is working satisfactorily.  If there are any mistakes or errors in the Standing Operating Procedure of the Supreme Court, same could be corrected by mutual discussions.  A candle light march may not be necessary for the purpose.   

The judiciary is today facing multiple problems. In such a situation, it is absolutely essential that there is harmony and mutual understanding between the Bench and the Bar. Any differences should be sorted out by mutual discussions and deliberations. This will be in the best interest of the judiciary and the country.

B V Acharya, Senior Advocate and former Advocate General for Karnataka. Bangalore

Anivar A Aravind vs Ministry of Home Affairs and others. Writ Petition 7483/2020 decided on 25 January 2021. Chief Justice Abhay S. Oka and Justice S. Vishwajith Shetty

Judgment Link: https://karnatakajudiciary.kar.nic.in/noticeBoard/WP-7483-2020.pdf

HELD: 28. (i) We accept the assurance given by the Government
of India that no individual will be denied the benefits
of any services that are being provided by the
Governments, its agencies and instrumentalities on
the ground that he has not downloaded and
installed Aarogya Setu app;

(ii) Prima facie, we hold that informed consent of the
users of Aarogya Setu app is taken to what is
provided in the privacy policy which is available on
Aarogya Setu app itself and, therefore, there is an
informed consent of the users of Aarogya Setu app
which is limited only to collection and manner of
collection of information, use of information and
retention, as provided in the privacy policy which is
available on the Aarogya Setu app. However, it is
made clear that the use and retention of information
and data shall remain confined to what is provided
in the privacy policy which is available on the
Aarogya Setu app;

(iii) Prima facie, we hold that there is no informed
consent of users of Aarogya Setu app taken for
sharing of response data as provided in the
Aarogya Setu Data Access and Knowledge Sharing
Protocol, 2020, as there is no reference to the said
protocol in the terms of use and Privacy Policy
available on the app,

(iv) Till further orders, we hereby restrain the
Government of India and National Informatics
Centre, the eighth and seventh respondents
respectively from sharing the response data by
applying the provisions of the Aarogya Setu Data
Access and Knowledge Sharing Protocol, 2020
issued vide order dated 11th May, 2020
(Annexure-R19) unless the informed consent of the
users of Aarogya Setu app is taken;

(v) However, it will be open for the Union of India and
National Informatics Centre, the eighth and seventh
respondents respectively to file an affidavit for
satisfying the Court that the Chairperson,
Empowered Group on Technology and Data Management or the said Empowered Group is legally empowered to issue the said protocol and
that the informed consent of the users of Aarogya
Setu app is taken for implementation of clauses
regarding sharing of the data as provided in the said
protocol. After filing of an affidavit and the
documents as aforesaid, it will be open for the said
respondents to apply for vacating the limited interim
relief granted as above, in terms of clause (iii).

M. Vishwanath vs State of Karnataka. Criminal Petition 2113/2020 decided on 23 December 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360577/1/CRLP2113-20-23-12-2020.pdf

Relevant paragraphs: 11.3. This Court in several decisions has come to a conclusion that the requirements under Section 15 of the Act are mandatory and not directory. However, in all the said decisions the dictum by the Hon’ble Apex Court in Bai Radha vs. The State of Gujarat reported  in 1969 (1) SCC 43 has not been brought to the notice of this Court, as such this Court had no opportunity to consider the dictum of the Hon’ble Apex Court.

11.5 Applying the principle’s laid down by the Hon’ble Apex Court in Bai Radha’s case (quoted supra) it cannot now be held that  the procedure under Section 15 of the Act is mandatory it can only be held to be  directory, in the event of the said directory provisions not being followed and  such failure resulting in prejudice to the accused, the trial Court would have to take into consideration such prejudice while deciding the matter.

11.6 The intent of the Legislature in providing for  a woman witness and or a woman police officer is due to the involvement of women   in the alleged crime. The crime alleged being such that the women in the brothel could be found in compromising position/s and or various stages of undress, the search having an impact on the privacy of the woman. Hence, a woman could raise an issue as regards the non following of the said preocedure, which the cour would be bound to consider.

11.7 This benefit in my considered opinion cannot be extended to men, there is no particular requirement for a women witness or woman police officer in so far as men on  the premises or men involved in the crime are concerned, be it as an owner of the  premises, the person running a brothel, person soliciting and or a customer. There  will be no prejudice caused to the men in the place raided if there is no woman witness or woman police officer. If at all, it is only a woman who could claim for this benefit.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Firdous Parveez Taj vs Yasmin Taj. Writ Petition 11100/2020 decided on 22 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360729/1/WP11100-20-22-01-2021.pdf

Relevant paragraphs: There is no dispute as to the legal requirement of disclosure inter alia of “assets” of the candidate and of spouse, both in terms of the State Election Commission Notification dated 14.07.2003 and the mandatory  prescription in the Nomination Form itself; the said Notification has been issued pursuant to  Apex  Court decisions in Union of India vs The Association for Democratic Reforms (2002) 5 SCC 294 and  PUCL vs. Union of India, (2003) 4 SCC 399; the gist of the mandatory Notification states that: every candidate at the time of filing his Nomination paper for any election or bye election of Panchayat or Municipality shall furnish full and complete information in regard to inter alia the assets (immovable, movable, bank balances, etc. ) of a candidate and of the spouse & also dependants, in a duly sworn affidavit.

The word ‘assets’ is derived from the French word ‘assez’ meaning ‘sufficient’; a word is the skin  of  a living thought (O.W.Holmes. J.,); at times  words  have flexible contours of meaning depending upon other companion words and the purpose of the instrument  in  which  they  are   employed;   the  word  ‘assets’  is  employed in Sec.73 of CPC which regulates the trial & disposal of Election Petitions vide Sec.23 of KMC Act; the Madras High Court has held to  mean  the  assets  as  proceeds  of  the  sale of the property in execution of a decree vide Ramanathan vs Subramania Sastrial 26   Madras 179; the Bombay High Court in Veilchand Chaganlal vs Musson 14 BOM LR 633 was of the view that  all  of man’s property, of whichever kind, which may be used to satisfy debts or demands existing against him constitute his asset; Sri P.Ramanath Iyer in “THE LAW LEXICON”, 3rd  Edn.  2012,  Butterworths  Wadhwa  at  pages  130-131   opines:  “An asset must be one for which a market value  can be ascertained … property  in general, all that one owns, considered as applicable to payment of his debts…”.

The word ‘asset’ employed in the Election Notification needs to be construed by placing on it a purposive interpretation; it needs to be given the widest amplitude regardless of its literal meaning since law is not the slave of dictionaries; that approach serves the purpose for which the said Notification has been issued as a subordinate legislation, pursuant to Apex Court decisions, supra; a restrictive meaning of the term if adopted as suggested by the counsel for the petitioner, would defeat the very purpose; in other words owning or possessing is not a component of the concept of “asset” as employed in the notification; viewed from this angle an agreement to sell for which consideration in part or full is passed on constitutes an asset and therefore the candidate  is  required to disclose the same in the affidavit accompanying the Nomination Form; a contra argument would defeat the purpose for achieving which law mandates disclosure of assets; the right of electors/voters to know the credentials of the candidate would be partly meaningless if the candidates do not disclose the amount (which may be in crores of rupees) paid to the vendor as consideration for the agreement to sell; such agreements, subject to all just exceptions may be assignable for consideration and thus they have marketability; therefore the contra contention cannot be sustained.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Firdous Parveez Taj vs Yasmin Taj. Writ Petition 11100/2020 decided on 22 January 2021.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/360729/1/WP11100-20-22-01-2021.pdf

Relevant paragraphs: It is basic to the law of elections that in a democracy, the mandate of people as expressed at the hustings must prevail and be respected; that is why the election of a successful candidate is not readily upset for askance; a heavy onus lies on the petitioner who seeks to void the election, to  make out a clear case, both in terms  of pleadings & proof; an election petition and a suit proceeding differ from each other in their nature & scope;  it is a settled position of law that all “material facts” must be pleaded by the party in support of the case  set up by  him for voiding an election; ordinarily, if some facts inadvertently or otherwise  are not pleaded can be loaded  to the pleadings by amendment provided that, leave therefor is sought before the expiry of the period of limitation prescribed for filing the petition; this again is subject to all just exceptions; the underlying object of this  is to enable the victorious candidate, to know the specific case which he has to meet.

Right to amend the pleadings even after the limitation period has expired avails in the realm of election law although it’s exercise is conditioned by  the  factors  such as nature & substance of amendment,  delay  & latches, the stage of proceedings & the like, is not much in dispute since the provisions of CPC are made mutatis mutadis applicable to the trial of election petitions vide Sec.24 of the Karnataka Municipalities Act, 1964; where challenge is laid on the  ground of corrupt practice, the  right to amend the pleadings is limited to introducing “amplificatory particulars” of a corrupt practice not previously averred in the petition but does not extend to introducing the material facts, as such; by the subject amendment the respondent seeks to introduce the details  of undisclosed properties to the petition, which are already stated in great details in the List of Documents which accompanied the original petition from the day one; even copies of documents were also filed; both the sides having understood what is what, accordingly have drawn  the battle lines; that being the position, it cannot be gainsaid that the amendment introduces the material facts, when it only amplifies of what are there already.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

Ved  Mitra  Verma v. Dharam  Deo  Verma,  Civil Appeal. 153 of 2009 decided on 31:7:2014. Reported in 2014 (15) SCC 578

Judgment: Justice Ranjan Gogai and Justice S.A.Bobde

1. Aggrieved by the judgment and order of reversal passed by the Gauhati High Court at Guwahati, Shillong Bench, this appeal has been filed.
2. The respondent Dharam Deo Verma had filed an application in the Court of Additional Deputy Commissioner at Shillong under Section 276 of the Indian Succession Act, 1925 (for short “the Act”) for grant of letters of administration in respect of a will dated 20-11-1974, claimed to have been executed by his father late Satyanand Verma. The learned trial court rejected the application holding the circumstances surrounding the execution of the will to be suspicious. In appeal, the High Court reversed the said verdict by an elaborate judgment.
3. The correctness of the view taken by the High Court has been sought to be assailed by contending that the reversal of the verdict of the learned trial court overlooks a series of suspicious circumstances which, it is contended, ought to have been taken into account to hold that execution of the will by the testator in favour of the present respondent has not been proved.
4. The suspicious circumstances, according to the appellant, may be enumerated in seriatim hereinunder: (i) That the will dated 20-11-1974 excludes all other children of the testator to the exception of the beneficiary thereof i.e. the respondent herein. No basis therefor is disclosed. (ii) In the will, the name of the daughter Vidyalakshmi Devi having been wrongly mentioned as Piplakshmi Devi. This is a glaring fact which raises serious doubts as regards the authenticity of the will. (iii) That the testator Satyanand Verma, was at the relevant point of time, suffering from ill-health which incapacitated him from executing the will; (iv) That the application before the learned trial court under the provisions of the Act was filed after nearly 17 years of the execution of the will; and lastly (v) That the attesting witnesses have passed away in the meantime. The execution of the will centres round the evidence of Shri Krishan Murari, Sub-Registrar, Jansath, Muzaffarnagar District (U.P.), PW 3, who had deposed on commission after nearly two decades of the execution of the will throwing serious doubts on the credibility of the evidence tendered.

5. It is the submission of Mr Rana Mukherjee, learned counsel appearing for the appellant that the aforesaid suspicious circumstances had rendered the execution of the will highly suspect and, in addition, the execution thereof not having been proved as required under Section 69 of the Evidence Act, 1872, there is an apparent error in the conclusions recorded by the High Court in reversing the verdict of the learned trial court.
6. The arguments made on behalf of the appellant have been refuted by Shri Mahabir Singh, learned Senior Counsel appearing for the respondent, who has submitted that the above circumstances, by themselves, do not render the execution of the will suspect or unworthy of acceptance. Furthermore, it is submitted by the learned counsel that all the aforesaid allegedly suspicious circumstances are capable of being reasonably explained on the basis of the materials on record. It is further submitted that Shri Krishan Murari, Sub-Registrar, Jansath, Muzaffarnagar District (U.P.), PW 3, in his deposition on commission has proved the execution of the will by the attesting witnesses and the same being a registered document, the conclusions recorded by the High Court are perfectly justified and would not require any interference by this Court.
7. We have considered the rival submissions advanced on behalf of the parties.
8. The exclusion of the other children of the testator and the execution of the will for the sole benefit of one of the sons i.e. the respondent, by itself, is not a suspicious circumstance. The property being self-acquired, it is the will of the testator that has to prevail.
9. Therefore, the question as to whether the will is a genuine and acceptable document will depend on a consideration of the other circumstances surrounding its execution.
10. While there is an obvious error in the will in the name of the daughter of the testator, there are two significant aspects of the matter which cannot be overlooked. Firstly, the will was written to the dictation of the testator, and secondly, in the description of the name of the daughter, there is a reference to her husband’s name which is correct i.e. Narayan Singh. The aforesaid two circumstances can reasonably explain the error in the name of the daughter as appearing in the will and we are persuaded to hold that the said error is not material so as to invalidate the will.
11. Insofar as the capacity of the testator to execute the will is concerned, though arguments have been advanced to show that on account of ill-health the testator was not in a position to realise and comprehend the consequences of his action, what cannot be overlooked is the fact that it is the admitted case of the respondent herein that at the time of the execution of the will, the testator was in Jansath in U.P. in connection with the treatment of his eye ailment. There is no material on record to hold that the testator was suffering from any other kind of physical or mental infirmity which had rendered him incapable of taking a decision with regard to bequeathing of the properties by means of the will in question.
12. It is not a fact that the will and its contents had come to light for the first time after 17 years when the application was filed before the learned trial court by the present respondent. From the materials on record before the High Court, it is evident that there was a family dispute between the parties which was resolved by the local Durbar and the proceedings thereof were recorded in Ext. 10. In the said document, there is a reference to the “deed of agreement” made by the deceased father in 1974 on the basis of which the appellant was found entitled to be in possession of the property in question. The aforesaid “deed of agreement” is, in fact, the will dated 20-11-1974.
13. The attesting witnesses having died, the Sub-Registrar, who had registered the will was examined as PW 3. He was examined on commission and in response to the questions posed to him, particularly, Question 2, he had set out the circumstances in which the attesting witnesses as well as the testator had signed on the document. This part of the evidence has been elaborately considered by the High Court to record its satisfaction that the execution of the will has been proved on the basis of the evidence of the Sub-Registrar i.e. PW 3. Having considered the aforesaid aspect of the matter, we are of the view that the satisfaction recorded by the High Court does not suffer from any apparent infirmity or fundamental error which would require correction in the exercise of our jurisdiction under Article 136 of the Constitution of India.
14. All the alleged suspicious circumstances surrounding the execution of the will being capable of being understood in the manner indicated above and the requirement of Section 69 of the Evidence Act, 1872 having been satisfied by the evidence of PW 3, we find that in the present case, the findings and conclusions recorded by the High Court would not call for any interference. Consequently, and for the reasons aforesaid, we dismiss the appeal leaving the parties to bear their own costs.

Photo courtesy LiveLaw

M/s. Dream Logistics Company vs Karnataka State Pollution Control Board. Criminal Petition 101728/2017 decided on 6 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348072/1/CRLP101728-17-06-11-2020.pdf

Relevant paragraphs: 9. Whether a Magistrate can issue summons to a person residing outside the territorial jurisdiction without conducting an enquiry under Section 202 of Cr.P.C., if so under what circumstances?

9.5 The procedure under Section 202 of Cr.P.C. is required to be followed only when the accused has no presence at all within the jurisdiction of the Court issuing process, which is not the case here.

HELD: 9.10.1 When the accused is having an office, branch office, corporate office, sales office or the like within the jurisdiction of the Magistrate where the offence has been committed and or continues to be committed, there would be no requirement for any enquiry under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.

9.10.2 In the event of accused being an individual, if the said accused has a temporary residence within the jurisdiction of the Magistrate, again merely because he does not have a permanent residence, there is no enquiry which is required to be conducted under Section 202 of Cr.P.C. It would, however, be required for the Magistrate to in the order of issuance of summons/process record as to why the enquiry under Section 202 of Cr.P.C is not being held.

9.10.3 When the accused has no presence within the jurisdiction of the Magistrate where the offence has been committed, then it would be mandatory for an enquiry under Section 202 of the Cr.P.C to be held.

9.10.4.   In the event of accused being aggrieved by the issuance of summons, the said accused immediately on receipt of the summons   and/or   on appearance  before  the Magistrate is required to make out his grievance before the Magistrate Court and/or by petition under Section 482 Cr.P.C. If there is any delay, in such challenge and/or if challenge has not made within reasonable time, the accused would not be entitled to raise the grievance that the procedure under Section 202 of Cr.P.C. has not been followed on  account of delay and latches.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

State of Uttarakhand and others. vs Sureshwati. Civil Appeal 142/201 decided on 20 January 2021.

Judgment Link: https://main.sci.gov.in/supremecourt/2020/13459/13459_2020_38_1501_25605_Judgement_20-Jan-2021.pdf

Relevant paragraphs: 14.This Court has in a catena of decisions held that where an employer has failed to make an enquiry before dismissal or discharge of a workman, it is open for him to justify the action before the Labour Court by leading evidence before it. The entire matter would be open before the tribunal, which would have the jurisdiction to satisfy itself on the evidence adduced by the parties whether the dismissal or discharge was justified.

A four Judge Bench of this Court in Workmen of the Motipur Sugar Factory Private Ltd. v. Motipur Sugar Factory AIR 1965 SC 1803 held that “11. It is now well settled by a number of decisions of this Court that where an employer has failed to make an enquiry before dismissing or discharging a workman it is open to him to justify the action before the tribunal by leading all relevant evidence before it. In such a case the employer would not have the benefit which he had in cases where domestic enquiries have been held. The entire matter would be open before the tribunal which will have jurisdiction not only to go into the limited questions open to a tribunal where domestic enquiry has been property held but also to satisfy itself on the facts adduced before it by the employer whether the dismissal or discharge was justified.

Note: Apart from other judgments, the Supreme Court places heavy reliance on Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v. The Management of Firestone Tyre & Rubber Co. of India (P) Ltd and Other (1973) 1 SCC 813 and quotes the following paragraphs

1. The right to take disciplinary action and to decide upon the quantum of punishment are mainly managerial functions, but if a dispute is referred to a Tribunal, the latter has power to see if action of the employer is justified.
2. Before imposing the punishment, an employer is expected to conduct a proper enquiry in accordance with the provisions of the Standing Orders, if applicable, and principles of natural justice. The enquiry should not be an empty formality.
3. When a proper enquiry has been held by an employer, and the finding of misconduct is a plausible conclusion flowing from the evidence, adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified only when the findings arrived at in the enquiry are perverse or the management is guilty of victimisation, unfair labour practice or mala fide.
4. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, had to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action, and it is open to the employee to adduce evidence contra.
5. The effect of an employer not holding an enquiry is that the Tribunal would not have to consider only whether there was a prima facie case. On the other hand, the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and the latter, on the evidence adduced before it, has to decide for itself whether the misconduct alleged is proved. In such cases, the point about the exercise of managerial functions does not arise at all. A case of defective enquiry stands on the same footing as no enquiry.
6. The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.
7. It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.
8. An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.
9. Once the misconduct is proved either in the enquiry conducted by an employer or by the evidence placed before a Tribunal for the first time, punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is so harsh as to suggest victimisation.
10. In a particular case, after setting aside the order of dismissal, whether a workman should be reinstated or paid compensation is, as held by this Court in Management of Panitole Tea Estate v. Workmens within the judicial decision of a Labour Court or Tribunal.

15 & 19. We have perused the Award passed by the Labour Court, and find that a full opportunity was given to the parties to lead evidence, both oral and documentary, to substantiate their respective case. In view of the aforesaid discussion, we allow the present Appeal, and set aside the Judgment of the High Court. The Award dated 22.8.2016 is restored.

Compiled by S. Basavaraj, Advocate, Daksha Legal.

M/s. Dream Logistics Company vs Karnataka State Pollution Control Board. Criminal Petition 101728/2017 decided on 6 November 2020.

Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/348072/1/CRLP101728-17-06-11-2020.pdf

Relevant paragraphs: 12. Point (v). Can a tenant or a licencee of the property contend that the liability of obtaining permission from the respective Pollution Control Board would be that of the owner and the tenant/licensee has nothing to do with it?

12.1 to 12.6 Neither the Air Act nor the Water Act makes any distinction between the owner and/or a tenant of a industry, factory or premises. The Act only refers to and applies itself to pollution being caused. Unless there is a contract to the contrary that an owner of the premises is to obtain permissions under the relevant pollution control Act, it would be for the alleged polluter to obtain necessary permissions and/or consent under the Air Act or Water Act. Section 21 of Act also does not make a distinction between the owner and/or a tenant insofar as it states “…. No person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area. ….”. Thus, the allegation in the present case being that the Petitioner has caused pollution and/or the Petitioner is operating the iron ore stackyard, it was for the Petitioner to obtain the necessary permission and/or consent from the jurisdictional Pollution Control Board.

12.7 From the reading of the above, it is seen that as per Condition No.8, the said Dream Logistics Company was required to obtain consent from KSPCB under Water Act and Air Act before the commencement of any activities as also to comply with several conditions as extracted above. Irrespective of whether the petitioner is an owner or a tenant or whether the land is owned by port authorities or otherwise, even at the time of allotment, it was made clear that it was for the petitioner to obtain consent from KSPCB. In the said background, it cannot now lie for the petitioner to contend that the consent was to be obtained by the port authorities. Be that as it may. This could also be a subject matter of trial. If at all, the port authorities are also liable, they can also be brought on record as additional accused in terms of Section 41 of the Air Act. Governmental authorities who violate Environmental Protection Act including the Air Act, Water Act could be liable for prosecution for such offences, the concerned persons who were incharge of such government department at that point of time can always be prosecuted.

12.8 1.1.            In view of the above, I answer Point No.(v) by holding that a tenant or a licensee of a property or anyone who operates any industrial plant or trade activity in the air pollution control area would have to obtain the necessary consent and/or permission from the jurisdiction Pollution Control Board unless there is a contract to the contrary between such tenant and owner of the premises or a licensee and licensor of the premises, requiring the Owner or Licensor to obtain such consent and/or permission.

Compiled by S.Basavaraj, Advocate, Daksha Legal