Complaint was not filed by competent authority: Delhi HC sets aside summoning order issued under Environment (Protection) Act against Aditya Birla Retail’s Ex-CEO
Justice Amit Sharma [13-03-2024]

Read Order:  THOMAS VARGHESE v. STATE & ANR [DEL HC- CRL.M.C. 2632/2012]

Tulip Kanth

New Delhi, March 15, 2024: While observing that the Assistant Environment Engineer was not competent to lodge a complaint under Section 19 of the Environment (Protection) Act, 1986, the Delhi High Court has set aside a summoning order issued against the Ex-CEO of Aditya Birla Retail Ltd, Thomas Varghese.

The respondent no. 2-Delhi Pollution Control Committee (DPCC) had instituted a complaint against the petitioner, Vivek and Kapil Kumar Sharma, who were the CEO, Store In-charge and Store Manager (Finance) at that relevant point in time respectively, of the retail store named, "More Mega Store" located at City Central Mall, Sector-10, Rohini, New Delhi.

It was alleged in the complaint that on conducting an inspection in the said retail store of the company- M/s Aditya Birla Retail Ltd., the Committee found that the concerned persons were using and were also involved in the storage of the plastic bags. A complaint under Section 15, 16 and 19 of The Environment (Protection) Act, 1986 was filed by DPCC against them including the present petitioner and the company (accused no. 2 and 1) based on the inspection conducted by the former in the premises of the concerned retail store. It was further averred in the complaint that jute bags were also found at the store but were rarely used.

The Metropolitan Magistrate took cognizance of the offences alleged in the complaint against the accused persons named therein, and issued summons against all the accused persons as per Section 204 of the Cr.P.C. The petitioner’s revision petition was dismissed by the ASJ.  Thus, the petitioner had approached the Delhi High Court challenging the impugned order of the ASJ.

The petitioner had referred to the notification dated 07.01.2009 whereby, Chairman and Member Secretary of DPCC were authorized by the Central Government to lodge the complaint under Section 19. However, it was argued that the impugned complaint had been filed by the Assistant Environment Engineer, who admittedly, was authorized by the Chairman and Member Secretary but not by the Central Government. It was submitted that the cognizance taken by the Metropolitan Magistrate was bad in law.

Placing reliance upon the minutes of the 55^th DPCC Board Meeting, the DPCC’s Counsel contended that the Board had delegated the power to ALO/concerned counsel to be present in the Court on behalf of Member Secretary, DPCC and also authorized concerned area's AEE to file complaint under the Act.

The Single-Judge Bench of Justice Amit Sharma observed that the judgment of the Supreme Court in P. Pramila And Others v. State of Kartnataka [LQ/SC/2015/558] was squarely applicable to the present case. It was observed therein that the Regional Deputy Environmental Officer had no jurisdiction to prefer complaints.

The High Court observed that in terms of notification No. S.O. 624(E) dated 03.09.1996 as referred to in notification No. F-08(86)/EA/Env./2008/9473 dated 07.01.2009, the Central Government had authorised the Chairman and Member Secretary of the committee as notified under The Water (Prevention & Control of Pollution) Act, 1974 and The Air (Prevention & Control of Pollution) Act, 1981 i.e., Delhi Pollution Control Committee (DPCC/Respondent No. 2) to lodge a complaint under Section 19. No power had been given for further delegation of power by the Chairman and Member Secretary of the said Committee to file complaint under Section 19. The reliance placed by the respondent on the minutes of 55th DPCC Board Meeting dated 09.12.2009 was also held to be misplaced by the Bench.

Referring to the 55th DPCC Board Meeting, the Bench opined that the minutes reflects that in a given case where a complaint was filed by the Member Secretary, the concerned Court had probably permitted the Member Secretary to be represented through its authorized representative but at the same time no such permission could have been given to the Member Secretary to authorize anyone on his behalf to file a complaint under Section 19.

“In the facts and circumstances of the present case, the intention of the legislature is clear to the extent that only the Central Government or any authority or person authorised by the Central Government in this behalf could file a complaint under Section 19 of the Act and Central Government vide the aforesaid notification has authorised the Chairman and the Member Secretary of the State Pollution Control Committee to file complaint under Section 19 of the Act. It is a different thing to say that once a complaint has been filed by the competent authority, i.e., Chairman or the Member Secretary then the same can be pursued by an officer authorized with the permission of the concerned Court”, the Bench asserted.

Thus, allowing the appeal and setting aside the summoning order, the Bench held that the complaint filed by respondent no. 2 with respect to the petitioner was not filed by the competent authority under Section 19.