ORDER
S.K. Chawla, J.
1. This is a revision by the accused persons challenging revisional order dated 1-10-1988 passed by the Sessions Judge, Morena setting aside Magistrate's order rejecting the complaint against accused persons and also remanding the case to the Magistrate for proceeding further in accordance with law.
2. A complaint was filed in the name of M. P. Pradushan Nivaran Mandal (hereinafter referred to as the State Board) signed by its Member-Secretary Shri R. K. Khare in the Court of Judicial Magistrate First Class, Sabalgarh on 7-8-1985 against two accused persons named 'The Morena Mandal Sahkari Shakkar Karkhana Ltd.' and General Manager of the said factory. These are the petitioners in this revision petition. The allegation made was that the accused persons were running a sugar factory and discharging effluents in contravention of the provisions of Sections 25 and 26 of Water (Prevention and Control on Pollution) Act, 1974 (hereinafter called the Act) and thereby were committing offence under Section 44 of the Act. The learned Magistrate by order dated 12-6-1987 held that the General Manager, who was being prosecuted in the criminal case before him, was not the General Manager during the relevant year 1983-84 but came to occupy that post only subsequently from the year 1986. On that ground the complaint was rejected and both the accused were released. In revision, the learned Sessions Judge by the impugned order dated 1-10-1988 held that one of the accused was the factory itself against which no such ground was available. Even with regard to the other accused, namely, the General Manager, the offence alleged in the complaint was a continuing offence and hence it could not matter if the General Manager being proceeded against was not the General Manager at any particular point of time. So holding, the learned Sessions Judge set aside the Magistrate's order rejecting the complainant and remanded the case for further proceedings against the accused persons in accordance with law. Feeling aggrieved by the order of the Sessions Judge, the accused persons have not come up in revision before this Court.
3. The only contention in support of this revision which is raised before me is that the complaint was neither made by the State Board nor by another, with its previous sanction in writing and hence no cognizance could be taken by the Magistrate as mandated in Section 49 of the Act. It will be seen that this point was not considered either by the Magistrate or in the revision by the Sessions Judge. The learned counsel for the accused/applicants, drawing attention of this Court to the accuseds' application dated 14-7-1986, made before the Magistrate, submitted that two grounds were taken by the accused persons in support of their contention that the complaint deserved to be rejected. One of the grounds was that the General Manager being proceeded against was not the General Manager at the relevant time. The second ground consisted of the above contention based on the provisions of Section 49 of the Act. The ground was contained in paragraph 7 of the said application. Even reply to that ground was given by the complainant in reply dated 21-8-1986. The parties had therefore joined issues on that point. The learned Magistrate as also the learned Sessions Judge did not consider it necessary to advert to that contention because discussion of the first ground was considered by the Magistrate to be sufficient to reject the complaint and by the learned Sessions Judge to set aside the Magistrate's order. It was urged before this Court that the contention now being raised was a purely legal question, which had also been raised before the two Courts below. It was also urged that the entire material for deciding the question is already on the record of the criminal case. This was not controverted by the learned counsel on behalf of the State Board. It was further urged that it would not be proper to send the case to the Court blow for decision of the question, because that decision would not be final and the matter may come up again before this Court. In these circumstances, this Court has thought it fit to allow the applicants to raise the above contention.
4. It will be proper to notice at the outset the language of Section 49 of the Act. Section 49 of the Act, so far as material for our purpose, reads thus :
'49(1). No court shall take cognizance of any offence under this Act, except on a complaint made by or with the previous 'sanction in writing of the State Board ...'
An amendment was introduced in the above provision by Amendment Act No. 53 of 1988, whereafter the above provision now reads as under:
'49(1). No court shall take cognizance of any offence under this Act, except on a complaint made by -
(a) a Board or any officer authorised in this behalf by it; or
(b) any person, who has given notice of not less than 60 days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board or officer authorised as aforesaid...'
5. It will be seen that under the amended provision of Section 49, a complaint for an offence under the Act may be made by a larger category of persons, including a private person under conditions given in that provision. The present complaint was filed on 7-8-1985, i.e. before the Amending Act of 1988 came on the Statute book. The law that was in force on the date, when cognizance was taken in the present case, will have to be naturally examined to decide if cognizance was validly taken by the Magistrate. Hence the provisions of Section 49 before its amendment by the Act of 1988 will have to be examined in the present case.
6. It will be seen that under that provision cognizance of any offence under the Act was barred, except on a complaint -
(1) made by the State Board, or
(2) with the previous sanction in writing of the State Board.
It is an admitted position in the present case that no previous sanction in writing of the State Board was given for the complaint under consideration. The question, therefore, narrows down to an inquiry whether the complaint was made by the State Board itself. No doubt, the complaint was in the name of the State' Board and its Member-Secretary Shri R. K. Khare signed the complaint. Answering the objection of the accused persons, complaining of non-compliance of the provisions of Section 49. it was stated on behalf of the complainant in the reply dated 21-8-1986 that the present complaint had been filed 'on behalf of the State Board and as such there was no necessity of any previous sanction. The exact wordings of the reply may be usefully quoted here:
^^vfHk;ksx&i;= eaMy dh vksj ls izLrqr gksusij fdlh iwoZ vuqefr dh vko';drk dk iz'u gh mRiUu ugha gksrk gSA**
Thus the case of the complainant from the very outset was that the present complaint had been made on behalf of the State Board and not that it was made by the State Board. More will be said about' the distinction between the two expressions in the sequel. The case of the complainant in this regard may first be understood. The complainant filed two documents in the Magistrate's Court, one dated 5-11-1980 and Anr., which bears no date. The first document dated 5-11-1980 is a resolution of the State Board of that date, authorising the Chairman or Member-Secretary, when authorised by the Chairman, to institute proceedings under the Act. In other words, the State Board by that resolution delegated its power to institute proceedings under the Act to the Chairman or to the Member-Secretary provided there was authorisation by the Chairman. The second undated document is a copy of a declaration purporting to have been signed by Chairman of the State Board, therein making a declaration that in compliance of Section 11A of the Act, the State Board by its resolution in 32nd meeting dated 5-11-1980 had authorised the Chairman to institute proceedings and further declaring that the case with respect to violation of the provisions of the Act under the signature of Member-Secretary against M/s. Morena Mandal Sahakari Shakkar Kailaras, Morena, which is already instituted in the Court, is the case for which there is previous sanction of the Chairman and in that way of the State Board. It is not necessary to give a deeper thought to this second document because it is in fact a ratification for the institution of proceedings by the Member-Secretary. It could not be a previous sanction for the simple reason that it was given after the institution of the proceedings, though it was couched in the form of declaration. A ratification would not cure a defect, if some existed, in taking cognizance.
7. With respect to resolution dated 5-11-1980, which has been referred to above, there was a lot of polemical discussion between the parties on the question as to whether there was or was not proper delegation of power to institute proceedings under the Act by the State Board to its Member-Secretary, who had signed the complaint under consideration. Shri N. K. Modi argued on behalf of the State Board that there was delegation by the Board to both the Chairman and the Member-Secretary, on being authorised by the Chairman. There was no sub-delegation in favour of the Member-Secretary. Had the resolution been that the Board authorises the Chairman or any other person on being authorised by the Chairman, the authority in favour of any other person by the Chairman would have been a sub-delegation, as the Chairman would have been required to choose and authorise in his turn. But in the present case, the resolution authorised not only the Chairman but also the Member-Secretary, subject only to the condition that the Member-Secretary should have been authorised by the Chairman. There was, it was argued, an unconditional authorisation by the State Board in favour of the Chairman, but a conditional authorisation, but still valid authorisation, in favour of the Member-Secretary. On the other hand, Shri R. D. Jain argued on behalf of the accused-applicants that the authorisation in favour of the Member-Secretary to institute proceedings in the Court was really a sub-delegation of the delegated power of the Chairman, which could not be valid. The decision in A. K. Roy v. State of Punjab reported in AIR 1986 SC 2160 was relied. A reference was also made to Sajjan Emplex Pvt. Ltd. v. M.P.P.N. Mandal in 1991 MPLJ 410 and an unreported decision, H. K. Bhandari v. M.P.P. Board, Misc. Cri. CaseNo. 173/87 decided on 24-12-1987 by a learned Single Judge at Indore Bench.
8. Shri J. P. Gupta, Senior Advocate, whose services were utilized by this Court as amicus curiae, argued that power of sub-delegation could be validly exercised only if the legislature authorised sub-delegation of power. A short answer to Shri Gupta's submission may appear in Section 12(2) of the Act, which may be reproduced here :
'(2) The Member-Secretary shall exercise such powers and preform such duties as may be prescribed or as may be, from time to time, be delegated to him by the Board or its chairman.'
The above is a provision of an enactment which authorises that Member-Secretary may exercise powers delegated to him not only by the Board but also by its Chairman. This provision does not say that the Chairman may delegate only his original powers to Member-Secretary and not the delegated powers from the Board. A Member-Secretary has been authorised by this piece of legislation to exercise powers not only directly delegated to him by the Board but also powers delegated to him by the Chairman with no condition attached that the power delegated by the Chairman should be his original powers. Without finally deciding the controversy as to whether sub-delegation has been authorised by the legislature. I am of the opinion that this revision can be decided on a short ground.
9. Even assuming on the basis of resolution dated 5-11-1980 that the State Board properly delegated its power to institute proceedings under the Act to the Member-Secretary, the question which in terms of the language of Section 49 arises is, if the complaint under consideration was made 'by' the State Board. It may be stated at the cost of repetition that it is an undisputed position that there was no previous sanction in writing of the State Board for the present complaint. It should be obvious that if an officer of the State Board by virtue of delegation of power in his favour acts on his own and institutes legal proceedings, e.g. makes a complaint albeit in the name of the State Board, as the Member-Secretary in the present case did, then it is an instance of complaint made by an officer of the State Board authorised in that behalf by the State Board. It is one of the manners in which cognizance may now be taken under Section 49, as amended by the Act of 1988. It may also be said to be an instance of complaint 'on behalf of' the State Board, as was the reply of the complainant in reply dated 21-8-1986. But it is not a complaint 'by' the State Board, which was one of the two manners to take cognizance, the other manner being complaint with the previous sanction in writing of the State Board, under the provision of Section 49 prevailing at the relevant time. It is clear to me that if the State Board had resolved to make the present complaint and authorised the Member-Secretary to file the complaint, then the complaint by the Member-Secretary in the present case, would have been 'by' the State Board. In the present case, it is an admitted position that the facts of the case were not considered by the State Board nor a decision taken that complaint be filed. On the other hand, the Member-Secretary claimed that he had general authority, on being authorised by the Chairman, to institute proceedings under the Act, acting on his own. In that case it was a complaint by an officer of the State Board. It is said that the complaint was brought in the name of the State Board and the Member-Secretary signed it. In that case, the complaint could further be called to be 'on behalf of' the State Board, which was also the reply by the complainant dated 21-8-1986 before the Magistrate. But even then it was not a complaint 'by' the State Board. It could be a complaint 'by' the State Board only if the State Board had resolved about it that it be brought. Since there was no such resolution, there is no escape from the conclusion that the present complaint was not by the State Board.
10. The words 'no Court shall take cognizance' employed in Section 49 have come in for interpretation on more, than one occasion by the Apex Court. Reference may be made in this connection to the decisions in Daulat v. State of Punjab in AIR 1962 SC 1206 and A. K. Roy v. State of Punjab in AIR 1986 SC 2160. The Apex Court has observed in these decisions that this is a negative language showing that the requirements of the provisions are imperative and that there is absolute bar against the Court taking cognizance of a case in any manner except as provided in the provision. Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. Keeping in mind such an approach, cognizance of any offence under the Water (Prevention and Control of Pollution) Act, 1974, is expressly barred, except in the manner prescribed in Section 49, namely on a complaint made by the State Board or with previous sanction in writing of the State Board under the law prevailing at the relevant time. In the present case, there was admittedly no previous sanction in writing of the State Board to the complaint filed. The complaint was on behalf of the State Board but not 'by' the State Board. As such, cognizance on the present complaint was barred.
11. As a result of the foregoing discussion, the present revision is allowed. The impugned order dated 1-10-1988 passed by Sessions Judge, Morena, is set aside and that of the Magistrate dated 12-8-1987 is restored, although for a different reason.