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        IN THE HIGH COURT OF KARNATAKA AT
                     BANGALORE

       DATED THIS THE 01ST DAY OF APRIL, 2013

                         BEFORE

     THE HON'BLE MR. JUSTICE ANAND BYRAREDDY

           CRIMINAL PETITION No. 978 of 2008


BETWEEN:

1.     M/s. Mahalakshmi Iron Ore Mines,
       Sy.No. 12,
       Gollarahalli village,
       Chikkanayakanahally Taluk,
       Tumkur District,
       Represented by the proprietor,
       Sri. S. Sudarshan Singh.

2.     S. Sudarshan Singh,
       Son of Late P. Sharma Singh,
       Aged about 43 years,
       Proprietor,
       M/s. Mahalakshmi Iron Ore Mines,
       No.22, IV Model House Street,
       Basavanagudi,
       Bangalore - 560 004.               ...PETITIONERS

(By Shri. C.G. Gopalaswamy, Advocate)
                                 2




AND:

Karnataka State Pollution Control Board,
Parisara Bhavan, No.49,
Church Street,
Bangalore - 560 001.
Represented by its Regional Officer,
(Environmental Officer),
Regional Office,
Plot No.97, Antharasanahalli Industrial Area,
Sira Road, Lingapura,
Tumkur - 572 106.                         ...RESPONDENT

(By Shri. D. Nagaraj, Advocate for Respondent No.1)

                              *****
      This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to quash the complaint in
C.C.No.286/2007 on the file of the Civil Judge (Jr.Dn.) and
Judicial Magistrate First Class, Chikkanayakanally.

      This petition is coming on for Final Hearing this day, the
court made the following:

                            ORDER

Heard the learned Counsel for the petitioners and the respondent.

2. The petitioners are said to be carrying on the business of extracting iron ore under a Mining Lease granted by the Government of Karnataka at the mines located at Gollarahalli, 3 Chikkanayakanahally Taluk, Tumkur District. The petitioners claim to have obtained consent from the respondent for the mining activity as required under the Air (Prevention and Control of Pollution) Act,1981 (Hereinafter referred to as the 'Air Act', for brevity) in terms of a letter dated 18.6.2004, with a condition that the ore extracted should not be more than 7900 Metric Tonnes per annum and this was effective from 18.6.2004.

2. Before the grant of consent, certain directions had been issued by the Ministry of Environment and Forests, Government of India, in order to ensure compliance with the environmental laws, particularly the environment impact assessment, which was required to be complied with by the Mines operators on or before 31.3.2003. The petitioners had applied for consent in terms of their application dated 12.12.2002. It is the case of the petitioners that there was no need for the petitioners to comply with the directions issued by 4 the Ministry of Environment and Forests and since the petitioners intended to increase the quantum of ore mined at the subject mines, they had applied to the Government for permission in that regard, which granted its permission as on 12.9.2006 for increase in the extraction of ore from 7900 Metric Tonnes to 80000 Metric Tonnes per annum. The petitioners then learnt that the respondent had filed a complaint under Section 20 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity), alleging that the petitioners had violated the provisions of Sections 21 and 22 of the Air Act punishable under Section 37 of the Air Act before the Court of the Civil Judge (Junior Division) and JMFC, Chikkanayakanahalli, which had registered a complaint and after taking cognizance, had directed the registration of a criminal case and had issued process against the petitioners in a case in CC No.286/2007. Aggrieved by the same, the petitioners are before this court.

3. The learned Counsel for the petitioners would contend that the complaint does not disclose the violation of Sections 21 or 22 of the Air Act by the petitioners. There is no specific allegation indicating that any such offence has been committed and therefore no action could have been taken on such a vague complaint and even according to the respondent, consent to extract the iron ore was granted in terms of Annexure -1 to the complaint, which is dated 17.6.2004 and by grant of such consent, non-compliance by the petitioners with any direction issued by the Ministry of Environment and Forests, Government of India or violation of Sections 21 or 22 of the Air Act would become non-est. The learned Counsel would also draw attention to the material portion of the complaint at Paragraph-7 of the complaint, which refers to failure to apply for consent to the Pollution Control Board before 31.3.2003 and also to the Ministry of Environment and Forests to obtain environmental clearance and therefore, an offence having been committed. The learned counsel would submit that even 6 according to the respondent, the petitioner having commenced their mining operations with effect from the year 2004, the question of complying with the directions issued to obtain consent and clearance even prior to that date, would hardly arise and therefore, there is no substance in the complaint. It is secondly pointed out that the authorisation to file a criminal case for violation of the provisions of Sections 21 and 22 of the Air Act, at Annexure-8 Page 27 of the memorandum, would indicate that the primary allegation is as regards mining beyond the permitted capacity of 7900 Metric Tonnes per annum, whereas the present complaint was filed in respect of non- obtaining the clearances as of 31.3.2003, which was not at all relevant. In any event, the petitioners have obtained clearances as at Annexure - A to the petition as on 12.9.2006 from the Ministry of Environment and Forests. And insofar as the excess mining which is alleged and for which an authorization to file a criminal case was granted, was also rendered non-est in view of such a clearance and consent having been obtained to 7 increase its mining capacity from 7900 Metric Tonnes per annum to 80000 Metric Tonnes per annum and reference to the same is at Annexure-A to the petition itself. Therefore, the learned counsel contends that the allegations in the complaint, even if uncontroverted, would not lead to conviction for the offences punishable under Sections 21 or 22 of the Air Act and hence, the complaint ought to be quashed.

4. On the other hand, the learned Counsel for the respondent would vehemently contend that obtaining clearance under the Environment (Protection) Act, 1986 (Hereinafter referred to as the 'EP Act', for brevity) is a condition precedent to commence any mining activity. This is evident from the dictum of the Supreme Court in M.C.Mehta vs. Union of India, AIR 2004 SC 4016, wherein the Supreme Court has, in so many words, discussed the procedure insofar as obtaining sanction and clearances under the EP Act and this being a mandatory requirement, the subsequent clearance or 8 permission granted to the petitioner would be redundant insofar as its non-observance and non-compliance for the relevant period when the mining activity had commenced in the year 2004 and therefore, the sanction and authorization granted to initiate prosecution was not only in respect of the excess mined quantity, but also the absence of clearance under the EP Act, which was admittedly obtained only subsequent to the year 2006. This would not enable the petitioner to claim that its mining activity was legal. Therefore, the learned Counsel would submit that insofar as the contention of the petitioners that there was no need to comply with the direction by the Government of India that all the existing units, or expanding their capacity, should have obtained such clearance on or before 31.3.2003, the petitioner, if it had commenced its activity in the year 2004, it necessarily was required to obtain clearance even prior to commencing its activity and in the absence of the same, is clearly an offence committed under the Air Act. The learned Counsel would submit that the offences 9 committed are two-fold, firstly that there was no such clearance obtained and secondly, the petitioner had exceeded the permissible quantity of mined ore, which admittedly was much beyond 7900 Metric Tonnes per annum, which was permissible under the consent order and therefore would submit that there is adequate ground made out in the complaint for bringing home a charge for an offence punishable under Section 37 of the Air Act.

5. Having regard to the above rival contentions, it is not in dispute that the petitioner has commenced the mining activity only in the year 2004. The clearance under the EP Act has been obtained with effect from 12.9.2006 and insofar as consent under the Air Act to mine the iron ore, even though was restricted to 7900 Metric Tonnes per annum under the original consent obtained, the same has been enhanced with effect from 2006 to 80000 Metric Tonnes per annum. The activity of the petitioner, if it was illegal, prior to obtaining such consent and clearance, would be insignificant as the authorities could have 10 withheld such consent and clearance, if indeed the petitioner had violated the conditions in the first instance. The respondent claiming that it would amount to an offence and that there was no such consent or clearance prior to the year 2006, was a glaring circumstance, which the Government of India ought to have taken into account in extending such clearance and consent. Notwithstanding the mandate of the apex court in M.C.Mehta's case, supra, to the effect that any such permission should have been granted before hand, was an aspect which ought to have been considered by the Ministry of Environment and Forests, Government of India, which could very well have withheld the consent and clearance. That not having been done, it is apparent that the authorities concerned did not find any fault with the activity of the petitioners. Therefore, in the light of the admitted clearance and consent granted to the petitioners subsequently, there is no indication of the authorities having found fault with the activity of the petitioners even prior to the date of such clearance and 11 consent. Accordingly, there is no substance in the allegations made at this point of time.

6. Further, from a plain reading of the authorization obtained to file a complaint and the complaint itself, it is apparent that there is inconsistency, in that, the authorization is in respect of the excess mined quantity of ore, whereas the complaint is primarily as regards the failure on the part of the petitioners in obtaining a clearance under the EP Act. This inconsistency would also defeat the complaint as it would apparently be without authorization . Insofar as the allegation that there was excess mining of the ore well beyond 7800 Metric Tonnes per annum, is concerned, that again having been permitted by the Government of India, as per Annexure-A, would hardly leave scope for a criminal prosecution on the alleged violation of the provisions of Sections 21 and 22 of the Air Act. Therefore, there is substance in the petition seeking quashing of the proceedings as the petitioner, as on date, is 12 armed with necessary consent and clearance. Hence, the criminal prosecution is not only infirm, in that, it is not consistent with the requirement of law, but also would be a futile exercise.

Therefore, the petition is allowed and the proceedings before the Civil Judge (Junior Division) and JMFC, Chikkanayakanahalli, in CC No.286/2007 shall stand quashed.

Sd/-

JUDGE nv