# M/S D.C.M. Ltd. & Ors v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 749
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-21
- **Bench:** Sudhir Agarwal, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-d-c-m-ltd-ors-v-state-of-u-p-ors-44208
- **Pages:** 11

## Headnote

Criminal Procedure Code, 1973-Ss. 227, 228, 239 & 240-Framing of charge-Re-analysis of
seized sample-Entitlement- No statutory or indefeasible right accrues to an accused to seek re-analysis
of a seized sample after submission of charge-sheet and at the stage of framing of charge-Grant of such
prayer depends on nature of commodity and stage of proceedings-Kerosene not shown to be perishable or
susceptible to deterioration-Refusal to permit re-analysis at pre-trial stage justified. (Paras 6, 8)
Essential Commodities Act, 1955-Ss. 3 & 7-Kerosene (PDS)-Seizure and analysis-Right of
defence- Accused retains right to challenge report of Public Analyst during trial under S. 293 CrPC-Absence
of express provision for re-analysis in Control Order does not render procedure arbitrary-Re-analysis, if
warranted, may be permitted at appropriate stage subject to judicial discretion and proof of prejudice. (Paras
7, 8)
Criminal Trial-Discharge-Scope of defence material- At stage of discharge, defence material is
limited to unimpeachable documents of sterling quality capable of demolishing prosecution case-Principle in
State of Orissa v. Debendra Nath Padhi does not extend to permitting collection of fresh evidence or reanalysis of seized samples-Reliance on Sadhan Sahkari Samiti Ltd. held misconceived. (Paras 9-11)
In Result- Application dismissed. (Para 13)

Cases cited

State of Orissa v. Debendra Nath Padhi(2005) 1 SCC 568

## Text

7 All. M/S D.C.M. Ltd. & Ors. Vs State Of U.P. & Ors.
749
------------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ C No.- 9513 Of 1989

M/S D.C.M. Ltd. & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rahul Mishra, Sudeep Kumar

Counsel for the Respondents:
S.C., H.N. Tripathi.

Criminal Procedure Code, 1973-Ss. 227, 228, 239 & 240-Framing of charge-Re-analysis of
seized sample-Entitlement- No statutory or indefeasible right accrues to an accused to seek re-analysis
of a seized sample after submission of charge-sheet and at the stage of framing of charge-Grant of such
prayer depends on nature of commodity and stage of proceedings-Kerosene not shown to be perishable or
susceptible to deterioration-Refusal to permit re-analysis at pre-trial stage justified. (Paras 6, 8)
Essential Commodities Act, 1955-Ss. 3 & 7-Kerosene (PDS)-Seizure and analysis-Right of
defence- Accused retains right to challenge report of Public Analyst during trial under S. 293 CrPC-Absence
of express provision for re-analysis in Control Order does not render procedure arbitrary-Re-analysis, if
warranted, may be permitted at appropriate stage subject to judicial discretion and proof of prejudice. (Paras
7, 8)
Criminal Trial-Discharge-Scope of defence material- At stage of discharge, defence material is
limited to unimpeachable documents of sterling quality capable of demolishing prosecution case-Principle in
State of Orissa v. Debendra Nath Padhi does not extend to permitting collection of fresh evidence or reanalysis of seized samples-Reliance on Sadhan Sahkari Samiti Ltd. held misconceived. (Paras 9-11)
In Result- Application dismissed. (Para 13)

Cases cited

State of Orissa v. Debendra Nath Padhi(2005) 1 SCC 568

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. During pendency of writ petition, we are informed that petitioners 3, 6, 7, 8, 9, 10, 11, 15
and 16 have died long back and, therefore, writ petition has abated in respect of these petitioners
including criminal proceedings initiated against them.
750 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The proceedings in question as also the dispute in the present writ petition is now
surviving only in respect of petitioners 1, 2, 4, 5, 12, 13 and 14 only.

3. Sri Prashant Chandra, learned Senior Advocate, assisted by Sri Rahul Mishra and Sri
Sudeep Kumar, Advocates, have appeared for petitioners; Sri R.C. Yadav, learned Standing
Counsel for respondent- 1; and, Dr. H.N. Tripathi, Advocate, has appeared for respondent-2.

4. About ten orders passed in a span of more than one and half decade have been
challenged collectively in this writ petition. Order dated 26.10.1981 (Annexure 3) is passed by U.P.
Water Pollution Board (hereinafter referred to as "Board") refusing consent to petitioner-1 for
discharge of effluent on the ground that effluent discharged by petitioner is highly polluted and has
not been properly treated and disposed of. The orders dated 27.03.1982 (Annexure-5), 07.02.1983
(Annexure-35B), 16.08.1984 (Annexure-35C), 25.06.1985 /10.07.1985 (Annexure-12), 06.05.1986
(annexure-31), 07.05.1987 (Annexure-33), 05.10.1987 (Annexure-34A), 10.02.1988 (Annexure35A) and 10.04.1989 (Annexure-47) also refuse consent under Section 25/26 of Water (Prevention
and Control of Pollution) Act, 1974 (hereinafter referred to as "Act, 1974") for subsequent years.

5. Petitioner has also prayed for issuance of a writ of certiorari quashing proceedings under
Section 33 of Act, 1974 pending in Case No. 773 of 1989 in the Court of Special Chief Judicial
Magistrate (Pollution Control), Lucknow. It has also prayed for quashing of complaint and further
proceedings in Case No. 774 of 1989 under Section 44 of Act, 1974 pending in the Court of Special
Chief Judicial Magistrate (Pollution Control), Lucknow.

6. Brief facts as borne out from writ petition are that petitioner-M/S Daurala Sugar Works
(Distillery) is owned by M/s DCM Limited, Delhi having its registered Office at Kanchenjunga
Building, 18, Barakhamba Road, New Delhi. Distillery was installed in the year 1943. There is
rearrangement of Company 'DCM Limited' along with three other Companies, i.e., DCM Industries
Limited, DCM Shriram Industries Limited and Shriram Industrial Enterprises Limited, approved by
Delhi High Court vide order dated 16.04.1990 under Section 391-394 of Companies Act, 1956
(hereinafter referred to as "Act, 1956"). Daurala Sugar Works, Daurala is now a unit of M/s DCM
Shriram Industries Limited, New Delhi with effect from 01.04.1990.

7. Since installation of Distillery, the Trade Effluent discharged by it is used to be
consumed by nearby growers to irrigate their fields and for that purpose petitioner-company
constructed a channel running in about five kilometers. This channel joins a drain (sewer) known as
kali Nadi which is neither a river nor watercourse nor stream.

8. Parliament enacted Act, 1974 and State of U.P. framed Rules, namely U.P. Water
(Consent for Discharge of Sewage and Trade Effluent) Rules, 1981 (hereinafter referred to as
"Rules, 1981") which came into force on 30.03.1981. It constituted 'Board' for the purpose of
giving effect to provisions of Act, 1974 and Rules framed by State Government. Sections 25 and 26
of Act, 1974 required a running Industry to obtain consent from Board for discharging 'Trade
Effluent' in a stream or well or sewer or on land. State Government issued Notification dated
7 All. M/S D.C.M. Ltd. & Ors. Vs State Of U.P. & Ors.
751
21.09.1981 specifying 31.12.1981 as the date on or before which consent application should be
filed by existing industries. Board vide Notification dated 06.04.1983 laid down effluent standards
for discharge in stream and on land. Board fixed BOD level at 100 MG per liter for existing
Distilleries.

9. Petitioner-1 submitted application for consent of Board on 29.06.1981. Board declined
consent vide letter dated 26.10.1981 and asked petitioner to submit fresh application with certain
clarifications. Petitioner-1 replied queries vide letter dated 27.11.1981. Consent was again declined
and documents were returned by Board vide letter dated 27.03.1982. Petitioner 1, however, was
again permitted to file fresh application.

10. For the purpose of setting up "Effluent Treatment Plant", petitioner-1 made an
application to Collector on 13.07.1981 requesting for allotment of 31.38 acres land in Village
Daurala and Machri, adjacent to petitioner-Distillery which was taken by State Government under
U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as "UP Act, 1960").
Correspondence continued but petitioner could not get land as desired for setting up "Effluent
Treatment Plant" whereupon petitioner made its own efforts with individual farmers and could get
land in June' 1984 and June' 1985 measuring 18.43 acres.

11. On 07.05.1983 and 16.08.1984 similar orders were passed by Board rejecting
petitioner's application for consent. Petitioner also moved application on 09.03.1985 to the Board
requesting for grant of consent in which it also mentioned a time bound programme for setting up
"Effluent
Treatment
Plant".
Board
however
declined
consent
vide
order
dated
25.06.1985/10.07.1985. Petitioner-1, however, was permitted to continue with the plan of setting
up "Effluent Treatment Plan". The standards fixed by Board vide Notification dated 06.04.1983
were very stringent and no proven technology was available to bring down distillery effluent to the
prescribed standards, hence a lot of correspondence took place between Members and Office
Bearers of All India Distillers' Association and Central Government etc. in which Distillers'
Association all through made attempts to have implementation of such standards deferred and to
allow Distilleries to install Treatment Plant in phases so as to reduce effluent upto the extent of 95
per cent, i.e., to bring down BOD upto 3000 to 4000.

12. Board issued a notice to petitioner under Sections 25 and 26 read with 44 of Act, 1974
with further advise to complete installation of "Effluent Treatment Plant".

13. Fifth time application was submitted by petitioner for consent on 04.01.1986. Since
petitioner's unit continuously was running without consent under Section 25/26, Board filed
application in March' 1986 under Section 33 of Act, 1974 before Chief Judicial Magistrate for a
direction to petitioner-distillery to stop discharge of effluent. An ex-parte order was passed by
Magistrate on 29.03.1986 restraining Distillery from discharging effluent in Kali Nadi. Petitioner
filed objection and thereafter Magistrate passed order on 17.05.1986 suspending interim order
dated 29.03.1986 and directing petitioner to submit progress report of "Effluent Treatment Plant" to
752 INDIAN LAW REPORTS ALLAHABAD SERIES

Board. It also directed petitioner-1 to ensure that it does not discharge polluted effluent without
treatment and will try its best to bring polluted effluent near about standards prescribed by Board.

14. Petitioner's application dated 04.01.1986 for consent was declined by Board vide order
dated 06.05.1986.

15. Sixth application was submitted seeking consent on 30.12.1986 which was also rejected
on 07.05.1987. Next application seeking consent was filed by petitioner 1 on 12.06.1987 which was
rejected by Board on 05.10.1987. Then further application was filed on 09.12.1987 which was
rejected on 10.02.1988.

16. In the pending proceedings under Section 33, Magistrate passed an order on 31.08.1987
directing petitioner-factory to bring down pollution level in 'Trade Effluent' upto prescribed
standard by 15.10.1987. On 09.09.1987, sample was taken and BOD content in the sample were
found as 775 MG/Liter and 725 MG/Liter. Petitioner made all efforts to bring down BOD level but
could not reduce BOD level as required, though it could be reduced by over 97 per cent.

17. Petitioner sought further time from Magistrate to bring down BOD standard as
required. Magistrate did not extend time and passed stop order on 17.10.1987. Thereagainst,
petitioners filed Criminal Revision No. 342 of 1987 before District Judge wherein initially an
interim order was passed but ultimately revision was dismissed by Sri S.K. Samadhiya, 11th
Additional District and Sessions Judge, Meerut. Thereafter, Chief Judicial Magistrate transferred
aforesaid Criminal Case vide order dated 31.01.1989 to the Court of Special Judicial Magistrate,
Pollution Control Board, Lucknow. Special Judicial Magistrate passed an order on 14.03.1989
directing Board to submit report by 15.04.1989 on the following aspects:

"i) Whether the Distillery of the petitioners' Company is in operation or not?

ii) Whether the order dated 26.9.98 of XIth Addl. Sessions Judge rejecting Revision
of the petitioner has been challenged in the High Court and whether any stay order has been
granted?

iii) What action has been taken by the Effluent Board on the directions of the
orders of CJM dated 17.10.1987 and order of XIth Addl. Sessions Judge dated 26.09.1988?"

18. On 15.04.1989, Court passed following order:

^^eqdnek is'k gqvkA ifjoknh i{k dh vksj ls fof/k vf/kdkjh mifLFkrA foi{kh dh vksj ls dksbZ ugh
cksykA

eqdnek fnukad 17-4-89 dks vfxze vkns'k gsrq is'k gks pwafd blh okn ls lacaf/kr eqdnek fnukad 17-4-89
dks fu/kkZfjr gSA^^
7 All. M/S D.C.M. Ltd. & Ors. Vs State Of U.P. & Ors.
753
"The case presented. Legal Officer is present from complainant side. None
responded on behalf of opposite party.

Put up this case on 17.04.1989 for further orders since another matter related to
this case is fixed for 17.04.1989."
(English Translation by Court)

19. Proceedings are now going on, though once final order was passed by Magistrate, there
was no occasion to continue with the same proceedings after transferring the same to Special
Judicial Magistrate.

20. In the meantime, it is submitted that effluent sample taken on 17.11.1987 was analysed
and report dated 07.12.1987 prepared by Industrial Toxicology Research Centre, Lucknow
(hereinafter referred to as "ITRC") found BOD contents as under:

"1) BOD of inlct of secondary treatment : 10200 mg/ltr

2) BOD of outlet of secondary treatment : 875 mg/ltr

3) BOD of final discharge after dilution : 98.8 mg/ltr

21. Petitioner with huge investment and continuous efforts installed Treatment Plant and
has been able to bring down pollutants level to optimum. There is no intentional and deliberate
violation of Act, 1974 and Rules and Regulations framed thereunder as also the standards laid
down by Board, hence, proceedings under Section 25, 26 and 33 of Act, 1974 are illegal. The
prosecution lodged by Board is without any foundation and ignoring sincere endeavour on the part
of petitioner-1 to treat Trade Effluent in the most effective manner for which it has also installed
Treatment Plant after investing huge amount in consultation with experts available in the Country.
The entire prosecution launched against petitioner is malicious and bad in law. Directors of
Company have been made accused without specifying as to how they have any nexus with the act
complained and therefore implication of all Directors of Company is illegal and bad. It is only with
the purpose to harass them. The order passed by Magistrate directing all the accused to appear
before him is without any application of mind. Petitioner-company has nominated vide Board of
Directors' resolution dated 26.12.1984, Sri Gyanendra Kumar, Chief Engineer, Daurala Sugar
Works as person in-charge of and responsible to Company for compliance and observance of
provisions of Act, 1974 under due intimation thereof to the Board but still it has implicated all
Directors of Company in a wholly arbitrary and illegal manner. Directors have exercised all due
diligence with regard to installation of Effluent Treatment Plant and hence are not liable for
imputation of any offence punishable under Act, 1974. Standard fixed by Board in 1983 were
almost impossible to attain and out of 28 Distilleries in State of U.P., hardly a few distilleries have
installed a Treatment Plant in both phases which show that it was not possible to run Distillery
maintaining standard of Trade Effluent as prescribed by Board. Therefore, requiring petitioners to
comply with a provision which is almost impossible is illegal and arbitrary. No person can be
754 INDIAN LAW REPORTS ALLAHABAD SERIES

required to do some thing which is impossible. It is said that before rejection of application for
consent, no opportunity was afforded and the orders were passed ex-parte, in violation of principles
of natural justice.

22. Standards have been revised by Board vide Notification dated 19.09.1992, a copy
whereof has been filed as Annexure SA-9 to the Supplementary Affidavit sworn by Dr. M.C.
Bardiya in November, 1994.

23. After revised standards and installation of Treatment Plant, petitioner-Factory has been
found discharging Trade Effluent as per prescribed revised standards and there is no violation of
provisions of Act, 1974. The proceedings initiated by Board under Sections 33 and 44 of Act, 1974
are malicious, there is no mens rea or intention on the part of petitioner to flout any provision
thereof and, therefore, all the impugned orders are liable to be set aside.

24. Learned counsel for petitioner has addressed us at a great length taking great pain to
show that Act, 1974 being a new legislation, after framing of Rules in 1981, petitioner-Company
made earnest efforts to treat Trade Effluent in most effective manner so as to reduce pollutants and
bring standards to the nearest possible as prescribed by Board, but since those standards were
impossible to achieve, petitioner Company failed to do so. Further, installation of Treatment Plant
took a longer time of seven years, firstly, due to delay in acquiring requisite area of land and
secondly, for installation of plant since its technology was not commonly available and petitionercompany has to consult and engage various experts in the field and for all these reasons, the bona
fide of petitioner to comply with the requirement of Act, 1974 is writ large and there is no reason to
penalize petitioner for some lapses, if got committed due to the reasons beyond the control of
petitioner.

25. However, having gone through the entire record and looking to the detailed
submissions, in our view the scope of judicial review in this writ petition is very limited. The
number of orders impugned in this writ petition are very large, but in effect same can be classified
in two categories; first, orders passed by Board refusing to grant consent under Section 25/26; and,
second, criminal proceedings initiated by Board for defiance on the part of petitioners in observing
mandate of Act, 1974 by filing applications under Section 33 and 44 which are pending before the
appropriate Court having jurisdiction in the matter.

26. Now so far as first category's orders are concerned whereby Board has refused consent,
it is an admitted position that petitioner-Company continued to run its factory and discharging
Trade Effluent which was not treated so as to bring down pollutants upto the standard prescribed by
Board. Meaning thereby petitioner continued to discharge 'Trade Effluent' on the
land/sewer/stream, as the case may be, without its treatment to bring down pollutants so as to
comply with the standards prescribed by Board and that too without any consent of Board.
Apparently, this action on the part of petitioners and its continued running of Factory and discharge
of Trade Effluent which was polluted beyond the standards prescribed by Board, was bound to
cause health hazards to the public at large. The applications filed by petitioner-1 seeking consent of
7 All. M/S D.C.M. Ltd. & Ors. Vs State Of U.P. & Ors.
755
Board did not satisfy requirement of Statute inasmuch admittedly Trade Effluent was not treated or
could not be treated at that time so as to bring down pollutants to the prescribed level. Board,
therefore, committed no mistake either in law or otherwise in rejecting consent and in view of these
admitted facts, on merits we find no justification at all to interfere therewith.

27. The substantial argument at this stage is that standards prescribed by Board were such
that no person despite best efforts and installing available technology, could have achieved. Statute
does not require a person to do something which is impossible and for such things petitioners
cannot be penalized at all.

28. The proposition of law in its abstract form is well established. There are three maxims
i.e."Lex Non Cogit ad impossibilia", "impotentia Excusat legim" and "neon tenatur ad
impossibilia". Law does not compel a man to do that which he cannot possibly perform. Where
law creates a duty and a party is unable to perform it without any default in him and has no remedy
over there, the law will excuse him.

29. The aforesaid doctrines have been accepted, approved and applied by Courts in India
also. As long back as in Cochin State Power and Light Corporation Ltd. Vs. State of Kerala
AIR 1965 SC 1788, Court followed the aforesaid maxims and held;

"The performance of this impossible duty must be excused in accordance with the
maxim, lex non cogit ad impossibilia (the law does not compel the doing of impossibilities) and
Sub-section (4) of Section 6 must be construed as not being applicable to a case where compliance
with it is impossible." (para 8)

30. A Constitution Bench of seven Hon'ble Judges in Re Presidential Pool 1974 (2) SCC
33, held as under:

"The maxim of law impotentia excusat legam is intimately connected with another
maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a
necessary or invincible disability to perform the mandatory part of the law that impotentia excuses.
The law does not compel one to do that which one cannot possibly perform. "Where the law creates
a duty or charge, and the party is disabled to perform it, without any default in him, and has no
remedy over it, there the law will in general excuse him." Therefore, when it appears that the
performance of the formalities prescribed by a statute has been rendered impossible by
circumstances over which the persons interested had no control, like the act of God, the
circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the
words of a statute, the statutory provision is not denuded of its mandatory character because of
supervening impossibility caused by the act of God. (See Broom's Legal Maxims 10th Edition at pp.
162-163 and Craies on Statute Law 6th Ed. at p.268)." (para 15)

31. In State of Rajasthan Vs. Shamsher Singh AIR 1985 SC 1082, Court, while
considering a case under National Security Act, applied the aforesaid doctrine and held as under:
756 INDIAN LAW REPORTS ALLAHABAD SERIES

"Mr. Jethmalani placed before us a passage from Broom's Legal Maxims (p.
162), 10th Edn., where the doctrine of impossibility of performance (lex non cogit ad
impossibilia) has been discussed. It has been indicated therein that however mandatory the
provision may be, where it is impossible of compliance that would be a sufficient excuse for
non-compliance, particularly when it is a question of the time factor. Keeping the attendant
circumstances of this case in view, we find it difficult to hold that the time taken by the State
Government can amount to withholding of the representation which resulted in noncompliance of Section 10 of the Act so as to vitiate the detention." (Para 10)

32. In Industrial Financial Corporation of India Ltd. Vs. Cannanore Spinning &
Weaving Mills Ltd. AIR 2002 SC 1841, it was held as follows:

"The Latin Maxim referred to in the English judgement "lex non cogit ad
impossibilia" also expressed as "impotentia excusat iegem" in common English acceptation
means, the law does not compel a man to do that which he cannot possibly perform. There
ought always thus to be an invincible disability to perform the obligation and the same is
akin to the Roman Maxim, "nemo tenetur ad impossibilia." (para 30)

33. In Rajesh D. Darbar Vs. Narsing Rao Krishnaji Kulkarni and others (2003) 7
SCC 219, it was held:

"The other maxim is, lex non cogit ad impossibilia i.e. the law does not
compel a man to do that what he cannot possibly perform. The applicability of the above said
maxim has been approved by this Court in Raj Kumar Dey Vs. Tarapada Dey 1987 (4) SCC
398, Gursharan Singh Vs. New Delhi Municipal Committee 1996 (2) SCC 459 and Mohd.
Gazi Vs. State of M.P. 2000 (4) SCC 342" (Para 6)

34. This is followed again in Ram Chandra Singh Vs. Sabitri Devi and others
2003 (8) SCC 319.

35. A Constitution Bench of five Hon'ble Judges also considered the aforesaid maxim
in Special Reference no. 1 of 2002, AIR 2003 SC 1987 and held as under:

"The maxim of law impotentia excusat legem is intimately connected with
another maxim of law lex non cogit ad impossibilia. Impotentia excusat Iegem is that when
there is a necessary or invincible disability to perform the mandatory part of the law that
impotentia excuses. The law does not compel one to do that which one cannot possibly
perform. "Where the law creates a duty or charge, and the party is disabled to perform it,
without any default in him, and has no remedy over it, there the law will in general excuse
him". Therefore, when it appears that the performance of the formalities prescribed by a
statute has been rendered impossible by circumstances over which the persons interested had
no control, like the act of God, the circumstances will be taken as a valid excuse. Where the
act of God prevents the compliance of the words of a statute, the statutory provision is not
7 All. M/S D.C.M. Ltd. & Ors. Vs State Of U.P. & Ors.
757
denuded of its mandatory character because of supervening impossibility caused by the act
of God. (See Broom's Legal Maxims 10th Edition at pp. 1962-63 and Craies on Statute Law
6th Ed. p. 268). These aspects were highlighted by this Court in Special Reference 1 of 1974,
(1975) 1 SCR 504 . Situations may be created by interested persons to see that elections do
not take place and the caretaker Government continue in office. This certainly would be
against the scheme of the Constitution and the basic structure to that extent shall be
corroded." (para 154)

36. Recently in Board of Control for Cricket in India Vs. Netaji Cricket Club
AIR 2005 SC 592, Court has again followed and approved the aforesaid maxim by referring
to the earlier judgment in Rajesh D. Darbar (supra) and said:

"The other maxim is, lex non cogit ad impossibilia, i.e. the law does not
compel a man to do that what he cannot possibly perform...." (Para 107)

37. In HUDA and Anr. Vs. Dr. Babeswar Kanhar 2005 (1) SCC 191, referring to
certain English decisions, Court has observed as under:

"Apart from the said section and various provisions in various other Acts,
there is the general principle that a party prevented from doing an act by some
circumstances beyond his control, can do so at the first subsequent opportunity (see
Sambasiva Chari v. Ramaswami Reddi 1898 (8) Madras Law Journal 265). The underlying
object of the principle is to enable a person to do what he could have done on a holiday, on
the next working day. Where, therefore, a period is prescribed for the performance of an act
in a court or office, and that period expires on a holiday, then the act should be considered
to have been done within that period if it is done on the next day on which the Court or office
is open. The reason is that law does not compel the performance of an impossibility. (See
Hossein Ally v. Donezelle ILR 5 Calcutta 906). Every consideration of justice and
expediency would require that the accepted principle which underlies Section 10 of the
General Clauses Act should be applied in cases where it does not otherwise in terms apply.
The principles underlying are lex non cogit ad impossibilia (the law does not compel a man
to do the impossible) and actus curiae neminem gravabit (the act of court shall prejudice
no man)." (para 5)

38. We, therefore, have no hesitation in observing that, if the material on record
justify an inference that standards prescribed by Board were impossible to attain, obviously
petitioner cannot be and should not be penalized for not attaining the same. But then it has to
be pleaded and proved by substantial material on record that standards prescribed by Board
are impossible to attain. The Board has exercised power which is akin to legislative power by
prescribing standards of Trade Effluent which can be discharged after treatment so that it
may not create any health hazards to public at large or to environment in general. Except
pleading that standards were not possible to attain, we do not find any material on record to
show that the said standards were impossible to attain. There is no technological analysis by
758 INDIAN LAW REPORTS ALLAHABAD SERIES

any expert body, placed on record to show that standards prescribed by Board were not
achievable. Mere fact that petitioners and other Distilleries at the relevant point of time did
not or could not attain those standards is one thing and to suggest that standards were not
achievable is another thing. On mere pleading of petitioners and that too quite vague, the
legislative exercise of Board in prescribing standards for discharge of Trade Effluent neither
can be interfered nor can be said to be unachievable. When somebody pleads that it is being
required to do something which is impossible, it has to show that a person similarly placed,
having all the possible aid and assistance with him, cannot achieve something which it is
required to do so.

39. Contention is that installation of Treatment Plant in a single phase so as to attain
prescribed standards was not possible, but that cannot be equated with the submission that
standards prescribed by Board were unachievable. We, therefore, reject the above submission
and hold that it was for petitioner to take all steps to comply strictly the provisions of Act,
1974 which was a welfare legislation for protection of environment in general and for safety
and health of general public.

40. Now coming to question, whether proceedings initiated by Board by filing
applications under Sections 33 and 44 of Act, 1974 are ex facie illegal so as to justify
exercise of our extraordinary jurisdiction under Article 226 for quashing the same, here also,
we find no substance in the arguments advanced on behalf of petitioners.

41. Complaints filed by Board satisfy ingredients of Sections 33 and 44 and it is not
the case of petitioners that Court concerned has no jurisdiction or that applications filed by
Board are otherwise not maintainable under relevant Statute. Rest of the submissions that
some of Directors are not in-charge or not responsible for functioning of Company are the
arguments in defence which will be considered by Court concerned when petitioners shall
appe ar and place their defence before it. At this stage, our scope of interference is very
limited. It is akin to the cases wherein writ petitions are filed for quashing of first
information report wherein it has been held repeatedly that only scope of judicial review is to
peruse first information report and treating allegations contained therein to be true, to find
out whether an offence under Sections mentioned in the report is made out or not. If the
offence is made out, Court will not interfere by quashing the report. Whatever possible
defence the accused person may have, that will be seen by Court concerned and not by a writ
Court. When we examine the matter in the light of above principles, we find no ground to
interfere with the proceedings pending before Magistrate concerned justifying quashing of
any order or proceedings.

42. In the result and in the ultimate discussion, it is evident that writ petition has no
merits.

43. Dismissed with cost which we quantify to Rs. 25,000/-.
7 All. Santosh Kumar & Ors. Vs State Of U.P. & Ors.
759
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ C No.- 9548 Of 2003

Santosh Kumar & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
W.H. Khan, Gulrez Khan, J.H. Khan

Counsel for the Respondents:
C.S.C., A.A. Khan

Land Acquisition - Urgency clause - Dispensation of Section 5-A inquiry - Validity - Newly
created district - Establishment of district headquarters - Public purpose - Judicial reviewLand
Acquisition - Invocation of urgency powers under Section 17 of the Land Acquisition Act, 1894 must be
justified by real urgency and cannot be exercised mechanically. (Paras 8, 19)

 However, where land is required for establishing infrastructure of a newly created district, including offices,
residences, and public institutions, the requirement may legitimately be treated as urgent. (Paras 20-22)
In such circumstances, dispensation of inquiry under Section 5-A is not per se illegal if supported by objective
material and administrative satisfaction. (Paras 21-22)

Section 17 invocation - Requirement of urgency - Infrastructure development - Administrative
satisfactionLand Acquisition - Section 5-A - Right of objection - Natural justice - Whether can
be dispensed withLand Acquisition - Lapse - Section 24(2) of 2013 Act - Non-payment of
compensation - Non-taking of possessionRemand by Supreme Court - Duty of High Court -
Consideration on merit.

Result - petition dismissed

Case cited:-

Gojer Brothers Private Limited and another v. State of West Bengal and others, (2013) 16 SCC 660
Prabhawati and others v. State of Bihar and others, (2014) 13 SCC 721
Union of India and others v. Shiv Raj and others, (2014) 6 SCC 564
Pune Municipal Corporation and another v. Harakchand Misirimal Solanki and others, (2014) 3 SCC 183
Naresh Kumar v. State of Haryana and others, (2014) 6 SCC 589
Magnum Promoters Private Limited v. Union of India and others, (2015) 3 SCC 327
Rajiv Chowdhrie HUF v. Union of India and others, (2015) 3 SCC 541