M/S B.T. and F.C. (Pvt.) Ltd., Bangalore Vs. Karnataka State Pollution Control Board, Bangalore - Court Judgment

Excerpt:
- designs act, 2000 -- section 22(4): [n.kumar, j] transfer of suit - suit for declaration that defendants are not entitled to manufacture, sell pvc pipes which infringes rights - defendant contending that under section 19 that design registered in favour of plaintiff was not registrable -held, civil court has not been vested with jurisdiction to cancel registration of a design made under act. said power vests only with controller and high court . refusal to transfer suit to high court is therefore improper. indian designs act,2000 -- section 19 & 22: [n. kumar,j] remedies under sub-section (4) of section 22 defence set out by the defendant under section 19 trial court refusing to transfer the suit to the high court finding of the trial court, provisions of section 22(4) is not attracted held, though the civil court has been vested with the power and jurisdiction to decide the question of infringement, payment of damages and other reliefs, it has not been vested with the jurisdiction to cancel the registration of a design made under the act. the said power vests only with the controller and the high court. therefore, in a proceedings initiated by the registered proprietor for any of the reliefs to which he is entitled to under sub-section (2) of section 22 or in any suit claiming other reliefs to which he is entitled to in law, if the defendant set-up a defence and urges in addition to other grounds, grounds mentioned in section 19 for cancellation of a registered design, then the civil court shall transfer the suit or other proceeding for relief under sub-section (2) to the high court for decision. further, no discretion is left to the civil court in this matter, once the ground set-out in section 19 of the act is urged as a ground of defence. as the civil court has no jurisdiction to adjudicate the said grounds and has no jurisdiction to order for cancellation of a registered design, it shall transfer the suit or such other proceeding pending before it to the high court for decision. section 22 (2): [n. kumar, j] statutory remedy available under interpretation of the wordings in any suit or any other proceedings appearing in sub-section (2) of section 22 held, these are the legal proceedings provided under sub-section (2) of section 22. use of words any other proceeding for the relief under sub-section (2) referred to in sub-section necessarily refers to the aforesaid two types of remedies provided under the said sub-section. that is the statutory remedies. no other remedy is provided under the statute for such contraventions. further, the words any suit referred thereto refer to proceedings other than under sub-clause (b) which also include a suit. any suit referred to a suit other than the suit instituted under the act to enforce the statutory remedies provided under the act. it is a suit to enforce the common law remedies. therefore, the words in any suit or any other proceeding for relief under sub-section (2) has to be read disjunctively and not conjunctively, otherwise it leads to absurdity. when the legislature has consciously used the aforesaid two different phrases , they cannot be read to mean one and the same. each phrase has to be given its due weight and meaning. between the two phrases, all the remedies to which a registered proprietor would be entitled to is covered. in includes both the statutory remedies contained in section 22(2) of the act as well as the common law remedies. - water pollution is among the worst form of anti-social offences that can be committed because the destruction is not only permanent but abnormally far reaching in so far as whole sectors of human population as also animal and bird life which are dependent on this water are being poisoned. that is a sad reflection on the level of responsibility that one expects from them.order1. i have heard the learned advocates on both sides. the petitioner's learned advocate is perhaps justified to some extent about his grievance because he states that the proceeding was between the respondent board and the original accused and pursuant to the accused pointing out to the court that the present petitioners' are in fact the lessees of the unit, the court has added them as the accused. the scope of s. 319 will have to be looked into from the spirit of the enactment which empowers a court to add on a party as the accused at any stage of the trial if it appears that prima facie, there is material to hold that such inclusion is necessary. in this case, the original accused-society pointed out that the unit is being run by the present petitioners and since the offence alleged was in relation to the discharge of effluent from the unit, the court was fully justified in adding on the company which is in fact running the unit.2. the petitioners' learned advocate submitted that the managing director of the company has been shown as an accused without there being an averment to the effect that the managing director of the company is responsible for the alleged offence. it is true that such a formal averment should be contained in the complaint or that some material should be placed before the court for purposes of arraigning an accused person but we cannot lose sight of the legal position in certain situations. where an offence is alleged on the part of a company, the managing director as the chief executive would necessarily have to be cited as an accused though it is always open to the individual concerned to plead whatever defence on facts and law he is entitled to. the question is as to whether the present petitioners have been rightly cited as accused and the answer to that question is in the affirmative.3. lastly the petitioners' learned advocate submitted that these proceedings have been long drawn out and that the managing director should he granted exemption. this is something within the discretion of the trial court and it is open to the petitioners to move the trial court for appropriate orders.4. the allegations in this case concern alleged acts of water pollution. there is a serious charge against the pollution control authorities that action is not taking taken against the errant individuals and corporate bodies who are polluting water sources and waterways with impunity and that the flora and fauna not to mention every conceivable form of marine life is being devastated in the process. water pollution is among the worst form of anti-social offences that can be committed because the destruction is not only permanent but abnormally far reaching in so far as whole sectors of human population as also animal and bird life which are dependent on this water are being poisoned. in certain instances epidemics have broken out due to such poisoning and in others, serious biological damage has been done the latest example being of an entire generation of horribly deformed frogs in the u.s. which have emerged with all sorts of mutations such as absence of limbs, extra organs in certain cases and the life. the majority of these pollutants being chemical substances harmful affluents of a carcinogenic character, research has demonstrated that the incidence of cancer is directly attributable to these substances, unfortunately, the matter is being taken very lightly and the pollution control authorities either do not act or, sabotage the court proceedings in total collusion with the offender. in the course of the hearing of this petition, the court had occasion to bring it to the notice of the learned advocate who represents the board who in turn was directed to convey to the officers and the board whom he represents, that the high court will, hereafter direct personal action against the board and its officers if a single such case goes unattended to. while the entire countryside is being defiled and destroyed and the very existence of the population is being seriously threatened, inaction on the part of the very authorities that have been specially set up and equipped to monitor, prevent and control instances of pollution is something that cannot be allowed to continue. as matters stand, there are direct accusations against these officers and authorities that they are acting in collusion with the offenders and if this is the case, it is nothing short of rank corruption. investigations have, however, revealed that there is a more serious aspect to the matter in so far as where the pollution is most serious such as in the cases of the bigger industries or businesses or those which are run by persons possessing a lot of money power and political contacts and clout, that the pollution control authorities being government organisation are specifically directed not to act in the matter and even in those of the instances where action is commenced, instructions are issued to withdraw the prosecutions. the classic situation is with regard to the non-implementation of pollution control measures as far as motor vehicles are concerned in the city of bangalore which has within just one decade reduced bangalore which was renowned as a garden city to the status of most polluted city in india. it is imperative, therefore, for this court to take a very stringent view of the situation and to ensure that immediate and appropriate action in consonance with law is taken. it is virtually a matter of survival that is involved.5. the role of the courts in relation of this category of cases in this state has not been very encouraging. the learned advocate who represented the board pointed out that whenever a prosecution is instituted on grounds of pollution that having regard to the seriousness of the case and the implications of the offence, that it is very necessary to take immediate action so that the damage is minimised. he points out that the subordinate courts have been delaying the disposal of these cases for years together as the accused keep asking for adjournments on all sorts of frivolous grounds and that finally, ridiculously low punishments are awarded as a result of which the accused, particularly if they happen to be corporate bodies, are least bothered about the prosecutions. where the board issues notices, there are a large number of cases in which political directions intervene and no action can be taken. it would be necessary for the govt. to give an assurance that no officer of the govt. at any level will misuse his position in this regard in future. similarly, the trial court shall ensure that the cases are disposed of with the least delay and that a rigorous view is taken in pollution offences as is the case in all other parts of the world.6. there is one other distressing aspect of the matter which unfortunately again concerns the courts and in respect of which area some introspection and corrective action has become necessary. the finest manner of stalling action in these cases is by getting proceedings stayed and an investigation indicates that on all sorts of frivolous/technical grounds, the proceedings are stayed and are virtually put into cold storage. a classic indication is with regard to this petition where the offence itself is 8 years' old and where in the year 1993 on some hyper-technical ground which was hardly of any substance, the said order was obtained from this court which has continued for 4 years. it may be that only one side of the case was presented or that a court may be misled while passing a stay order but i see no ground to justify the inaction on the part of the board and its officers who have not even applied to the court to vacate the stay order and dispose of the proceeding. that is a sad reflection on the level of responsibility that one expects from them.7. no case for interference has been made out. the petition stands disposed of. interim stay vacated.8. the registrar general shall forward a copy of this judgment to the chief secretary to government of karnataka as also to the chairman, karnataka state pollution control board both of whom shall acknowledge the receipt of the court order and shall indicate to this court that the observations contained in the order have been noted and that the same will be implemented. a copy of the order shall also be forwarded to all the district judges in the state of karnataka with a direction that the observations of this court be brought to the notice of all judicial officers in the district dealing with these cases for necessary implementation.9. petition dismissed.

Judgment:
ORDER

1. I have heard the learned advocates on both sides. The petitioner's learned advocate is perhaps justified to some extent about his grievance because he states that the proceeding was between the respondent Board and the original accused and pursuant to the accused pointing out to the Court that the present petitioners' are in fact the lessees of the unit, the Court has added them as the accused. The scope of S. 319 will have to be looked into from the spirit of the enactment which empowers a Court to add on a party as the accused at any stage of the trial if it appears that prima facie, there is material to hold that such inclusion is necessary. In this case, the original accused-Society pointed out that the unit is being run by the present petitioners and since the offence alleged was in relation to the discharge of effluent from the unit, the Court was fully justified in adding on the company which is in fact running the unit.

2. The petitioners' learned advocate submitted that the Managing Director of the Company has been shown as an accused without there being an averment to the effect that the Managing Director of the Company is responsible for the alleged offence. It is true that such a formal averment should be contained in the complaint or that some material should be placed before the Court for purposes of arraigning an accused person but we cannot lose sight of the legal position in certain situations. Where an offence is alleged on the part of a company, the Managing Director as the Chief Executive would necessarily have to be cited as an accused though it is always open to the individual concerned to plead whatever defence on facts and law he is entitled to. The question is as to whether the present petitioners have been rightly cited as accused and the answer to that question is in the affirmative.

3. Lastly the petitioners' learned advocate submitted that these proceedings have been long drawn out and that the Managing Director should he granted exemption. This is something within the discretion of the trial Court and it is open to the petitioners to move the trial Court for appropriate orders.

4. The allegations in this case concern alleged acts of water pollution. There is a serious charge against the pollution control authorities that action is not taking taken against the errant individuals and corporate bodies who are polluting water sources and waterways with impunity and that the flora and fauna not to mention every conceivable form of marine life is being devastated in the process. Water pollution is among the worst form of anti-social offences that can be committed because the destruction is not only permanent but abnormally far reaching in so far as whole sectors of human population as also animal and bird life which are dependent on this water are being poisoned. In certain instances epidemics have broken out due to such poisoning and in others, serious biological damage has been done the latest example being of an entire generation of horribly deformed frogs in the U.S. which have emerged with all sorts of mutations such as absence of limbs, extra organs in certain cases and the life. The majority of these pollutants being chemical substances harmful affluents of a carcinogenic character, research has demonstrated that the incidence of cancer is directly attributable to these substances, unfortunately, the matter is being taken very lightly and the pollution control authorities either do not act or, sabotage the Court proceedings in total collusion with the offender. In the course of the hearing of this petition, the Court had occasion to bring it to the notice of the learned advocate who represents the Board who in turn was directed to convey to the officers and the Board whom he represents, that the High Court will, hereafter direct personal action against the Board and its officers if a single such case goes unattended to. While the entire countryside is being defiled and destroyed and the very existence of the population is being seriously threatened, inaction on the part of the very authorities that have been specially set up and equipped to monitor, prevent and control instances of pollution is something that cannot be allowed to continue. As matters stand, there are direct accusations against these officers and authorities that they are acting in collusion with the offenders and if this is the case, it is nothing short of rank corruption. Investigations have, however, revealed that there is a more serious aspect to the matter in so far as where the pollution is most serious such as in the cases of the bigger industries or businesses or those which are run by persons possessing a lot of money power and political contacts and clout, that the pollution control authorities being Government organisation are specifically directed not to act in the matter and even in those of the instances where action is commenced, instructions are issued to withdraw the prosecutions. The classic situation is with regard to the non-implementation of pollution control measures as far as motor vehicles are concerned in the City of Bangalore which has within just one decade reduced Bangalore which was renowned as a Garden City to the status of Most Polluted City in India. It is imperative, therefore, for this Court to take a very stringent view of the situation and to ensure that immediate and appropriate action in consonance with law is taken. It is virtually a matter of survival that is involved.

5. The role of the Courts in relation of this category of cases in this State has not been very encouraging. The learned advocate who represented the Board pointed out that whenever a prosecution is instituted on grounds of pollution that having regard to the seriousness of the case and the implications of the offence, that it is very necessary to take immediate action so that the damage is minimised. He points out that the subordinate Courts have been delaying the disposal of these cases for years together as the accused keep asking for adjournments on all sorts of frivolous grounds and that finally, ridiculously low punishments are awarded as a result of which the accused, particularly if they happen to be corporate bodies, are least bothered about the prosecutions. Where the Board issues notices, there are a large number of cases in which political directions intervene and no action can be taken. It would be necessary for the Govt. to give an assurance that no officer of the Govt. at any level will misuse his position in this regard in future. Similarly, the trial Court shall ensure that the cases are disposed of with the least delay and that a rigorous view is taken in pollution offences as is the case in all other parts of the world.

6. There is one other distressing aspect of the matter which unfortunately again concerns the Courts and in respect of which area some introspection and corrective action has become necessary. The finest manner of stalling action in these cases is by getting proceedings stayed and an investigation indicates that on all sorts of frivolous/technical grounds, the proceedings are stayed and are virtually put into cold storage. A classic indication is with regard to this petition where the offence itself is 8 years' old and where in the year 1993 on some hyper-technical ground which was hardly of any substance, the said order was obtained from this Court which has continued for 4 years. It may be that only one side of the case was presented or that a Court may be misled while passing a stay order but I see no ground to justify the inaction on the part of the Board and its officers who have not even applied to the Court to vacate the stay order and dispose of the proceeding. That is a sad reflection on the level of responsibility that one expects from them.

7. No case for interference has been made out. The petition stands disposed of. Interim stay vacated.

8. The Registrar General shall forward a copy of this judgment to the Chief Secretary to Government of Karnataka as also to the Chairman, Karnataka State Pollution Control Board both of whom shall acknowledge the receipt of the Court order and shall indicate to this Court that the observations contained in the order have been noted and that the same will be implemented. A copy of the order shall also be forwarded to all the District Judges in the State of Karnataka with a direction that the observations of this Court be brought to the notice of all Judicial Officers in the District dealing with these cases for necessary implementation.

9. Petition dismissed.