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Criminal Misc. No. M-32221 of 2012 (O&M) -1-
Criminal Misc. No. M-3077 of 2013 (O&M)
In the High Court of Punjab and Haryana at Chandigarh
Criminal Misc. No. M-32221 of 2012 (O&M)
Date of decision: 10.7.2013
Dr. Rabindra Shekhar Prasad and others ......Petitioners
Versus
Regional Officer, Gurgaon Region, .......Respondent
Haryana State Pollution Control Board.
2. Criminal Misc. No. M-3077 of 2013 (O&M)
Dr. Ing Premansu Banerjee ......Petitioner
Versus
Regional Officer, Gurgaon Region, .......Respondent
Haryana State Pollution Control Board.
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Vikas Bahl, Advocate,
for the petitioners.
Mr. P.S.Poonia, Advocate
for the respondent.
****
SABINA, J.
Vide this order, above mentioned two petitions would be disposed of as the petitioners have sought quashing of complaint No. 2 of 2009 dated 9.1.2009, titled as Regional Officer Gurgaon Region Haryana State Pollution Control Board versus M/s Unitech Limited and others" (Annexure P-6) under Section 15 of the Criminal Misc. No. M-32221 of 2012 (O&M) -2- Criminal Misc. No. M-3077 of 2013 (O&M) Environment Protection Act, 1986 ('Act' for short) as well as summoning order dated 31.7.2009 (Annexure P-17), whereby the petitioners were summoned to face the trial under Section 15 of the Act and all the subsequent proceedings arising therefrom.
The contents of the complaint (Annexure P-6) read 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 Site 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 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 Criminal Misc. No. M-32221 of 2012 (O&M) -3- Criminal Misc. No. M-3077 of 2013 (O&M) 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 Arcadia, South City-II, Phase-I, Gurgaon and as per record the accused No. 2 to 4 are its Directors and 5 is the authorized signatory 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, 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 Criminal Misc. No. M-32221 of 2012 (O&M) -4- Criminal Misc. No. M-3077 of 2013 (O&M) 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 of Arcadia, South City-II, Phase-I, 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 the Environmental Clearance is obtained i.e. 11.7.2007, by the accused persons.
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 never try to remove/stop the violation by taking Environmental Clearance and has committed an offence punishable under 15 of The Environment Protectioni 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 5.12.2008 has asked the Criminal Misc. No. M-32221 of 2012 (O&M) -5- Criminal Misc. No. M-3077 of 2013 (O&M) Regional Officer to file complaint against the accused company and its directions. The copy of letter dated 5.12.2008 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 Forests as per the procedure laid down in the Notification and are violating the directions given under the notifications and 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"
Learned counsel for the petitioners has submitted that the company had applied for Environment Clearance Certificate from the appropriate authority. The Ministry of Environment and Forests vide letter dated 11.7.2007 (Annexure P-7) had granted environmental clearance for the project in question. Thereafter, the company Criminal Misc. No. M-32221 of 2012 (O&M) -6- Criminal Misc. No. M-3077 of 2013 (O&M) applied for 'No Objection Certificate' and the Haryana State Pollution Control Board granted the said certificate on 7.3.2007. The complaint in question had, however, been filed on 9.1.2009 under Section 15 of the Act.
Learned counsel for the respondents, on the other hand, has opposed the petitions and has submitted that the clearance certificate had been obtained by the company after it had started the construction. In fact, electricity connection had been taken much before the grant of the clearance certificate.
After hearing learned counsel for the parties, I am of the opinion that both the petitions deserve to be allowed.
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 Criminal Misc. No. M-32221 of 2012 (O&M) -7- Criminal Misc. No. M-3077 of 2013 (O&M) 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 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 Criminal Misc. No. M-32221 of 2012 (O&M) -8- Criminal Misc. No. M-3077 of 2013 (O&M) (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 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." The point in controversy in the present case is only to the effect that whether the company got the Environment Clearance Certificate before starting the work or thereafter.
In the present case, notification was issued by the Ministry of Environment and Forests dated 14.9.2006, whereby the company was required to get the prior Environment Clearance Certificate before starting its business. Admittedly, the petitioners Criminal Misc. No. M-32221 of 2012 (O&M) -9- Criminal Misc. No. M-3077 of 2013 (O&M) were granted the clearance certificate by the Government of India, Ministry of Environment and Forests vide letter dated 11.7.2007 (Annexure P-7).
A perusal of the complaint (Annexure P-6) reveals that the complaint was filed against the petitioners and others on the allegation that the petitioners had started new construction project without obtaining any prior Environment Clearance Certificate from the Ministry of Environment and Forests. The complaint has been filed in January 2009, whereas, the clearance certificate has been issued to the company on 11.7.2007 (Annexure P-7). In the complaint it has not been mentioned that as to when the construction project was started by the company. A perusal of the complaint also reveals that the allegations levelled therein are vague as it has not been stated therein as to how the offence under Section 15 of the Act had been committed by the petitioners-company. The petitioners were granted 'No Objection Certificate' on 7.3.2007. In these circumstances, it cannot be said that the company had started its work before the issuance of the Environment Clearance Certificate. On the day the complaint was filed, the petitioners-company was already having the Environment Clearance Certificate. In these circumstances, the continuation of the criminal proceedings against petitioners would be nothing but an abuse of process of law.
Accordingly, both petitions are allowed. Criminal complaint No. 2 of 2009 dated 9.1.2009, titled as Regional Officer Gurgaon Region Haryana State Pollution Control Board versus M/s Unitech Limited and others" (Annexure P-6) under Section 15 of the Criminal Misc. No. M-32221 of 2012 (O&M) -10
-Criminal Misc. No. M-3077 of 2013 (O&M) Act as well as summoning order dated 31.7.2009 (Annexure P-17), and all the subsequent proceedings arising therefrom, are quashed.
(SABINA) JUDGE July 10, 2013.
gurpreet