2013 ALL MR (Cri) 2577
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
K.U. CHANDIWAL, J.
Western Maharashtra Development Corporation & Ors. Vs. The State Of Maharashtra & Anr.
Criminal Writ Petition No.10 of 2006,Criminal Application No.1633 of 2013
16th April, 2013
Petitioner Counsel: Mr. S M GODSAY
Respondent Counsel: Mr. APPASAHEB G. GAIKWAD, Mrs. R K LADDA
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989), Ss.3(1)(ii)(vii), 3(1)(xiii) - Penal Code (1860), Ss.166, 269, 34 - Allegations of offences under S.3 - Prayer for issuance of process - Maintainability - Agricultural properties of villagers damaged due to contaminated water of a Govt. distillery - Undertaking by Corp. to provide employment to affected villagers - Employment provided only to few villagers on recommendation of Sarpanch - Distillery then transferred to a private firm and undertaking not carried out - Grievance of respondent that he and other members of backward class were not given employment - Held, illegalities of Corp. were not intended to harm the backward class only - Respondent as one of villagers, is a victim of industrialization - Issuance of process under SC/ST Act declined - Process issued only for offences under IPC. (Para 12)
2. A distillery was started at Chitali in Rahata Ahmednagar district by the Government of Maharashtra. It was transferred to the petitioner - Western Maharashtra Development Corporation (for short, the Corporation). For the purposes of such industrial unit, the distillery, properties of agriculturists were acquired. However, the left over properties in the near by area were adversely affected due to non-treatment of spent water/molasses. This resulted into percolation in the wells and fertility of the soil was adversely affected. The farmers in the area staged agitation. The Government, at that time, realized a piquant condition. Consequently, fresh water used to be supplied to Chitali village. However, it did not resolve the damage to the agricultural fields, yield and to the well water.
3. Respondent No.2 and others filed Writ Petition No.2533/1989 in this Court, asserting privilege including fresh water; services to youths of the farmers, who lost their agricultural properties. An affidavit was filed on behalf of the Corporation, clarifying that the claim of the petitioners will be considered along with other similarly situated persons. Hence the petition was withdrawn with liberty to move the High court afresh, if the Corporation deviates from the assurance given in the affidavit.
4. It was canvassed that Corporation has filled in certain vacancies in consultation with village Sarpanch and few villagers were given employment. However, Respondent No.2, felt that there was an illegal league between the Corporation and local Sarpanch, as the persons belonging to backward class, were systematically eliminated from getting employment. It was also canvassed by the Respondent No.2, there could not be a local authority vested in the Sarpanch to act as a catalyst and perform such act detrimental to the interest of villagers as a whole.
5. Respondent No.2 filed a complaint before learned Judicial Magistrate, First Class, Shrirampur, against the petitioners and others for having committed offences under Sections 166, 167, 188, 202, 203, 206, 217, 128, 219, 221, 269, 269, 270, 427 r/w 34 of Indian Penal Code and under Section 3(1)(xiii) and under Section 4 of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short, SC/ST Act).
6. There were rounds of litigations owing to said complaint. It was dismissed. It was questioned by Respondent No.2 by Criminal Revision No.15/2004. It was allowed on 8.3.2004, restoring the complaint to original position. Statement of Respondent No.2 was recorded and learned JMFC issued process against the petitioners for offence under Sections 166, 269 r/w 34 of IPC by order dated 13.5.2004. the orders were again questioned in this Court. However, as the Respondent No.2 had filed criminal revision No. 33/2004, the petitioners were also asked to avail remedy of revision (vide Criminal WP No.260/2004) and hence the revision No.42/2004 was preferred by the Corporation before the learned Additional Sessions Judge, Shrirampur. The learned Additional Sessions Judge, on 28.09.2005 dismissed both the revisions and consequently the order of issuance of process was maintained. The petitioners questioned the same order in present writ petition. However, Respondent No.2 has accepted the verdict of non-issuance process under other provisions of IPC and under SC/ST Act.
7. Mr.Godsay, learned Counsel for the petitioners, submits that due care is taken to regulate spent water as lagoons are erected in a sprawling area of 80 acres and the contamination has now turned to zero percent. Now the water source is safe and cannot be said to be unfit for human consumption.
Mr.Godsay further pointed the ingredients of Section 166 of IPC and according to him, it will not attract involvement of public servant to disobey the law deliberately with intent to cause injury to the present.
8. Learned Counsel submits that in 1997, the distillery was sold by the Corporation to an enterprenuer and consequently, there will be no any liability/responsibility upon the petitioners to abide with the affidavit given in Writ Petition No. 2533/1989, and order dated 4.12.1989.
9. The respondent argued for himself; took minutely to the events with dates as to how influential political personalities ensured loss to Government exchequer. The distillery owned by the Government could not be sold to a private individual and hence, by a camouflage, it was merged into petitioner No.1 Corporation and thereafter it was transferred to a company at a very throw away price, for which again The State Industrial & Investment Corporation of Maharashtra Ltd. (SICOM) has financed and even suffered recovery. According to him, it was a calculated exercise of the politicians to ditch the villagers; cause deliberate loss to the Exchequer for personal gain. The petitioners did not act deligently in discharge of their duties as public servant. He has urged, in the light of infraction of provisions of SC/ST Act, as well water of the persons belonging to SC community, has been tampered with and contaminated, this Court, in exercise of powers under Article 227 of the Constitution of India and revisional powers vested under Section 401 Cr.P.C. and inherent powers under Section 482 Cr.P.C., should correct the error committed by learned JMFC and confirm in Revision No.33/2004 by learned Additional Sessions Judge, by issuing process under Section 3(1) (ii)(vii) and 3(1)(xiii), as well water is intentionally corrupted. He has reiterated that the ground of 100% contamination-free is in air; life of the villagers has turned into miserable events and they are put in jeopardy. Well water is still unfit for human consumption. There is no income left to the respondent or villagers and consequently, the process does not call for interference.
10. On 12.12.2006, this Court suggested Mr.Godsay, whether the Corporation is in a position to provide employment to son of Respondent No.2 and other adversely affected villagers. Time was sought, however, it apparently did not yield any positive response.
11. This Court has again on 21st March, 2013 orally asked the same, however, the reply indicated that the Corporation is ceased with ownership and the decisions of such employment are to be taken by the subsequent purchaser, viz. John Distillery.
12. The party-in-person has urged to initiate action under SC/ST Act. However, the illegalities primarily committed by the petitioners were not deliberate to cause harm to a person, specifically belonging to back ward class, as the village, as a whole, was adversely affected by the pollution/contamination. There was no willful conduct and wrongful act to single out to a member of scheduled castes and deny him requisite benefits. Such available right, specifically being member of scheduled castes to render such well water unfit or corrupt it with such ill intention, is not surfacing, though Respondent No.2, as one of the villagers, is a victim of industrialization without proper environmental safeguards.
13. In a matter of such character, there would not be a point to consider sanction to prosecute few of the petitioners as prima facie, deliberate omissions to discharge the official functions, has made life of the villagers/respondent miserable and injurious. The petitioners, in defiance to their affidavit before this Court, did not accommodate the Respondent No.2 or his son in employment. The petitioners even did not bother to cure the injurious and hazardous situation of contamination in the village. The petitioners, as a whole, primarily did not stop the nuisance, which has occasioned due to their negligent act and has spread infection in the area and life of the villagers is put at peril. The submission, that presently, there is zero percent contamination, though appears to be rosy, however, difficult to act upon as the situation faced in the past by Respondent No.2 and the villagers has no match and parallel. Respondent No.2 has turned bankrupt, wandering for justice from pillar to post. There is no coherent steps taken for establishing zero percent contamination. Again this is part of evidence. This subsequent act will not dilute and deflate the acts in defiance of the affidavit brazenly carried, injurious to the hygiene and health of the villagers.
14. Respondent No.2, by now, having put in his life in litigation, has quite grown up around 54-55 years old. Respondent No.2 has suffered frustration due to such delay. No efforts were made to accommodate any of his family members or persons from nearby area, barring selectively elected persons, nominated by unauthorized person, the Sarpanch of the village. Said Sarpanch had his political agenda. Primarily, the act of the petitioners demonstrate infraction. It speaks louder to collectively take action to avoid contamination. Consequently, no relief. Writ Petition dismissed. Rule discharged. Criminal Application No.1633/2013 disposed of. Record and Proceedings be sent immediately. Trial is expedited.
15. Heard. The order was pronounced in the morning session. Now, at 1.00 p.m., learned Counsel for the writ petitioner seeks extension of interim relief granted in the writ petition. In absence of the Respondent No.2, such prayer cannot be entertained. Hence, refused.