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CRM No.M-13289 of 2012 (O&M) & -1-
CRM No.M-13556 of 2012 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
(1)
CRM No.M-13289 of 2012 (O&M)
Date of decision:- 28.08.2014.
AB Multiplex Pvt. Ltd. and others
......Petitioners
Versus
Regional Officer, Gurgaon Region, Haryana, State Pollution Control
Board, Panchkula
.......Respondent
(2)
CRM No.M-13556 of 2012 (O&M)
M/s Jassum Propcon Projects Ltd. and others
......Petitioners
Versus
Regional Officer, Gurgaon Region, Haryana, State Pollution Control
Board, Panchkula
.......Respondent
SANDEEP SETHI
2014.09.02 16:10
I attest to the accuracy and
integrity of this document
CRM No.M-13289 of 2012 (O&M) & -2-
CRM No.M-13556 of 2012 (O&M)
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Sanjay Tangri, Advocate for the petitioners.
Mr. Arun Walia, Sr. Advocate with
Mr. Servedaman Rathore, Advocate for
the respondent.
****
SABINA, J.
Vide this order, above mentioned two petitions would be disposed of as the controversy involved in both the cases is same.
Facts are stated from CRM No.M-13289 of 2012. Petitioners have filed these petitions seeking quashing of the complaint No.38/2008 dated 21.10.2008 and complaint No.47/2008 dated 21.10.2008 filed against them under Section 15 of the Environment Protection Act, 1986.
Learned counsel for the petitioners has submitted that the complaints in question were filed against the petitioners on the allegation that as per Notification dated 14.09.2006, it had been made compulsory for the petitioners to have obtained environmental clearance by the Central Government before starting any operations/projects etc. However, the petitioners had sought clarification from the Government of India, Ministry of Environment and Forests and vide Annexure P-8, it had been informed to the petitioners that they did not require any environmental clearance from the Union Ministry of Environment & Forests of the Sate Environment SANDEEP SETHI 2014.09.02 16:10 I attest to the accuracy and integrity of this document CRM No.M-13289 of 2012 (O&M) & -3-
CRM No.M-13556 of 2012 (O&M) Impact Assessment Authority under the new EIA Notification, 2006 as amended on 01.12.2009.
Learned Senior counsel for the respondent, on the other hand, has opposed the petition and has submitted that the petitioners had started construction activities in violation of the Notification of the Environment Impact Assessment Authority dated 27.01.1994 which was further amended vide Notification dated 07.07.2004 and further amended vide Notification dated 14.09.2006.
Complaint Annexure P-1 reads as under:-
"1. That the Haryana State Pollution Control Board is statutory body, having come into existence under special statute to perform the functions under The Water (Prevention and Control of Pollution) Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981 and The Environment Protection Act and Rules and regulations and notification issued there under and is having jurisdiction over whole of Haryana. In order to have proper and smooth functioning of the Board, the Board have established various Regional Offices and has appointed Regional Officers with powers delegated to them vide agenda items No. 135.7 and 135.8 passed in 135th meeting of Haryana State Pollution Control Board held on 10.05.2005. The copy of agenda items No. 135.7 is Annexure C-1 copy of agenda items No. 135.8 is SANDEEP SETHI 2014.09.02 16:10 I attest to the accuracy and integrity of this document CRM No.M-13289 of 2012 (O&M) & -4-
CRM No.M-13556 of 2012 (O&M) Annexure C-2 and copy of minutes of 135. meeting is Annexure C-3.
2. That Dr. C.V. Singh Scientist 'C' is the Regional Officer of Gurgaon Region of Haryana State Pollution Control Board and is fully conversant with the fact and circumstances of the case and has been authorized to file the present complaint vide notification of Central Govt. under clause (a) of Section 19 of The Environment Protection Act, 1986. The copy of the notification is Annexure C-4 and the copy of letter of appointment of Dr. C.V. Singh, as Regional Officer is Annexure C-5.
3. That the accused No. 1 company is engaged in promoting and marketing and Construction of Sewa Tower Commercial Complex, M.G. Road, N.H. -8, Gurgaon and accused No. 2 to 3 are its directors and are responsible for the day to day functioning of the accused No. 1 and are controlling the day to day affairs of the accused No. 1 company and are liable to prosecuted for the acts and omissions and commissions done in the name of the accused No. 1. Annexure C-6 is showing the status of the accused person and incorporation of the Company.
4. That Ministry of Environment and Forest Govt. of India, SANDEEP SETHI 2014.09.02 16:10 I attest to the accuracy and integrity of this document CRM No.M-13289 of 2012 (O&M) & -5-
CRM No.M-13556 of 2012 (O&M) New Delhi has issued notification on Environment Impact Assessment of Development Projects on dated 27.1.94 (Annexure C-7) and further amended by notification dated 7.7.2004 (Annexure C-8) and further issued notification 14.09.2006 (Annexure C-9) whereby it was made compulsory to obtain Environment Clearance by the Central Govt. before starting any operations projects etc. by any interested person or persons and all the procedure has been provided therein the notifications.
5. That the accused No. 1 has started new Construction M/s. Sewa Tower Commercial Complex, M.G. Road, N.H. -8, Gurgaon without obtaining any prior Environment Clearance from the Ministry of Environment and Forest as per the procedure laid down and as such this construction being raised in violation of Notification thereof, invites action U/s 15 of the Environment Protection Act. The offence of violation of the notification is continuous offence and is committed by the accused every moment/day by raising construction and acts appended thereto, till date.
6. That accused were given notices as well as intimated through public advertisement/notice about the violation which is annexed as (Annexure C-10) but the accused SANDEEP SETHI 2014.09.02 16:10 I attest to the accuracy and integrity of this document CRM No.M-13289 of 2012 (O&M) & -6-
CRM No.M-13556 of 2012 (O&M) never try to remove/stop the violation by taking Environment Clearance and has committed an offence punishable under Section 15 of the Environment Protection Act and now any environmental clearance after that will not hold good for the prior commission of the offence.
7. That Chairman of the Haryana State Pollution Control Board vide letter dated 19.02.2008 has asked the Regional Officer to file complaint against the accused company and its directions. The copy of letter dated 19.02.2008 is Annexure C-11.
8. That all the accused being in charge and responsible persons for day to day functioning of the accused No. 1 have criminally conspired and has a criminal conspiracy to carried out the construction project in violation of the notification and has committed an offence punishable under Section 15 of the Environment Protection Act, as no Environmental Clearance has been obtained by the accused persons.
9. That the accused persons are carrying out illegal construction of their project without obtaining any prior approval from the Ministry of Envionment and Forest as per the procedure laid down in the Notification and are violating the directions given under the notifications and SANDEEP SETHI 2014.09.02 16:10 I attest to the accuracy and integrity of this document CRM No.M-13289 of 2012 (O&M) & -7-
CRM No.M-13556 of 2012 (O&M) thus committing an offence in Gurgaon which falls into the jurisdiction of the Hon'ble Court.
It is, therefore, prayed that the accused may kindly be summoned and be prosecuted and punished in accordance with the law"
In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-
(1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report SANDEEP SETHI 2014.09.02 16:10 I attest to the accuracy and integrity of this document CRM No.M-13289 of 2012 (O&M) & -8-
CRM No.M-13556 of 2012 (O&M) and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the SANDEEP SETHI 2014.09.02 16:10 I attest to the accuracy and integrity of this document CRM No.M-13289 of 2012 (O&M) & -9-
CRM No.M-13556 of 2012 (O&M) concerned Act, providing efficacious redress for the grievance of aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
Thus, the petitioners were sought to be prosecuted on the ground that they had not obtained the environmental clearance from Central government before starting the operations/projects etc. in violation of Notification dated 27.01.1994 which was further amended vide Notification dated 07.07.2004 and further vide Notification dated 14.09.2006.
SANDEEP SETHI 2014.09.02 16:10 I attest to the accuracy and integrity of this document CRM No.M-13289 of 2012 (O&M) & -10-
CRM No.M-13556 of 2012 (O&M) A perusal of Annexure P-8 reveals that the petitioners had approached to Government of India, Ministry of Environment & Forests with regard to applicability of new EIA Notification dated 14.09.2006 in respect of the project Corporate Suits Commercial Complex at MG Road, Gurgaon. In reply to the clarification sought by the petitioners, they were informed vide Annexure P-8 that the project undertaken by them did not require any environmental clearance from the Union Ministry of Environment & Forests of the State Environment Impact Association Authority under the new EIA Notification, 2006 as amended on 01.12.2009.
Although, learned counsel for the respondent, during the course of arguments, has submitted that the petitioners were being sought to be prosecuted on account of violation of the terms of Notification dated 27.01.1994 but the said argument is not made out from complaint (Annexure P-1). In this regard, reference can be made to para 4 of the complaint Annexure P-1. Rather the contents of the complaint are totally vague. Since as per Annexure P-8, petitioners were not required to obtain the environmental clearance certificate, continuation of criminal proceedings against the petitioners would be nothing but abuse of process of law.
Accordingly, these petitions are allowed. Impugned complaint No.38/2008 dated 21.10.2008 (Annexure P-1) in CRM No.M-13289 of 2012 and complainant No.47/2008 dated 21.10.2008 (Annexure P-1) in CRM No.M-13556 of 2012 and all the subsequent SANDEEP SETHI 2014.09.02 16:10 I attest to the accuracy and integrity of this document CRM No.M-13289 of 2012 (O&M) & -11-
CRM No.M-13556 of 2012 (O&M) proceedings arising therefrom are quashed.
(SABINA) JUDGE August 28, 2014.
sandeep sethi SANDEEP SETHI 2014.09.02 16:10 I attest to the accuracy and integrity of this document