JUDGMENT Rajeshwari Prasad, J. - This is a petition in revision filed by Sarvsri Mukhtar Ahmad occupier and Mahboob Alam Manager. Sri R.C. Pant Magistrate I Class, Kanpur on 15th January, 1965 convicted the two petitioners under Section 92 of the U.P. Factories Act for having committed breach of Section 12 of the said Act read with rule 13 of the Rules framed thereunder and sentenced each of them to pay a fine of Rs. 200/- and in default to undergo simple imprisonment for three weeks. An appeal preferred against an order of conviction was dismissed by the II Temporary Civil and Sessions Judge, Kanpur on 19th October, 1965. The petitioners run a factory known as "Universal Tannery Factory, Kanpur". Petitioner Mukhtar Ahmad is the occupier and the petitioner Mahboob Alam is the manager of the said factory. On 17th June, 1964, the Factory Inspector visited the premises of the above factory and he found that effective arrangement for disposal of wastes and effluents had not been made by the management of the factory. He also found that the management had not constructed the fill and draw tanks for improving the standard of the effluent, as suggested by the Effluent Board earlier. The petitioners pleaded not guilty and took the case that they had submitted a plan for the disposal of effluent to the Secretary U.P. Effluent Board on 26th August, 1963 which had not been approved or rejected by the State of U.P. They could not, therefore, be guilty of the offence with which they were charged. In support of this revision petition, Mr. A. Bannerji, the learned counsel for the petitioners, has urged that the factory of the petitioners was an old existing factory within the meaning of clause (7) , Rule 18 of the Factory Rules framed under Section 12 (2) of the Factories Act. The only duty cast upon such factory under the Rules is to make an application for approval of arrangement made by the factory for the discharge of effluents along with necessary enclosures. According to him, this duty had been performed by the Factory. The Board neither approved the plan submitted by the factory, nor did it make any order disapproving the same. According to him, this duty had been performed by the Factory. The Board neither approved the plan submitted by the factory, nor did it make any order disapproving the same. The factory was, therefore, entitled to continue the arrangement which it had made for that purpose so long as the plans submitted by it had not been disapproved by the Board. Consequently, the petitioners could not be said to be guilty of the offence with which they were charged. On the other hand, the submission made on behalf of the prosecution is that with reference to the application made by the factory under clause (7) of Rule 18, the Board exercises the powers given to it by clause (10) of Rule 18. The Board had written to the management of the factory by its letter No. 8663 dated September 18, 1963 enquiring from the factory if the plans submitted by it were strictly in accordance with the designs prepared by the Public Health Engineering Research Unit. It was also said in that letter that if it was not so, then the representative of the factory should see Sri R.N. Chakravarty, C.P.A.F.R.I. Kanpur with the plan and find out the measurement of tanks required to be constructed according to the quality of the effluent discharged each day and to do the needful forthwith. The factory did not comply with the requirement of that letter and consequently the petitioners were guilty of non-compliance with Rule 18 as well as violation of Section 12 of the Act. Sub-clause (10) of Rule 18 reads as hereunder: - "The Board may call for such other information as it considers necessary for the consideration of the application of the factory or may require a representative of the factory to be present for personal discussion. No travelling allowance shall, however, be allowed to the representative for such journey." It has further been contended by Mr. Bannerji that information which the Board sought from the factory could be discovered from the documents in possession of the Board itself, and it was not necessary for the factory to answer such a query. It is further urged that it was not open to the Board to require the factory to send its representative to a third person Mr. R.N. Chakravarty, who was not an official of the Board. It is further urged that it was not open to the Board to require the factory to send its representative to a third person Mr. R.N. Chakravarty, who was not an official of the Board. The question that arises, therefore, is whether the conduct of the petitioners in not answering the question put by the Board in exercise of its power under clause (10) of Rule 18, could be deemed to be an offence of violating Rule 18 and therefore punishable. It is not in controversy that the Board did not make any order either approving the plans submitted by the factory or disapproving the same. There is no corresponding clause in Rule 18 which lays down that the silence of the factory when an enquiry had been made from it under sub-clause (10) would be punishable as an offence. The course open to the Board in view of the attitude of the factory was to proceed to disapprove the plan submitted by the factory and to dismiss the application for approval thereof. If the Board had made an order disapproving the plan, it was open to the factory to go in appeal against that order before the State Government under clause (14) of Rule 18. In the instant case, the Board did not follow that procedure with the result that it has been left open to the factory to argue that the plan submitted by it to the Board having not yet been disapproved, the factory was still within its right to continue with the arrangement which it had made for the discharge of effluent from the factory. The petitioners have not been charged with the offence of violating clause (7) of Rule 18 on the allegations that they had failed to apply within the prescribed time to the Board for approval of their arrangement. The charge against the petitioners is one for not making effective arrangement for the discharge of effluent. To my mind, so long as the application of the factory for an approval of the plan was not disposed of according to law, the prosecution of the petitioners as in the present case could not be made. The charge against the petitioners is one for not making effective arrangement for the discharge of effluent. To my mind, so long as the application of the factory for an approval of the plan was not disposed of according to law, the prosecution of the petitioners as in the present case could not be made. Before parting with this case, it may be observed that in cases where a factory does not attend to the queries made by the Board under clause (10) of Rule 18, the Board should proceed to pass an order disapproving the plan submitted by the factory and to dismiss the application for sanction of such plan. It is only when this is done, that a prosecution of the present nature would be appropriate. In the view that I have taken, this revision petition is allowed, order of petitioners' conviction and the sentence awarded to them by the learned Magistrate and maintained by the learned Sessions Judge are set aside an the petitioners are acquitted. Fine if n d shall be refunded. Petition allowed.