1


    IN THE HIGH COURT OF KARNATAKA AT BANGALORE

          DATED THIS THE 7TH DAY OF JUNE 2013
                             BEFORE

  THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
             CRIMINAL PETITION No.5205/2008

BETWEEN:

M/s. Puravankara Projects Ltd.,
A Company registered under the
Companies Act, 1956, and
Having its office at No.130/1,
Ulsoor Road, Bangalore-560 042,
Having its Site office at
"Purva Sunshine",
Survey Nos.48/1, 48/2, 49/1,
49/3, 49/4, 50 & 51,
Kaikondanahalli,
Sarajapura Road,
Bangalore East Taluk,
Represented by its
Director Mr.Nani.R.Choksey.            ... Petitioner

[By Sri.A.H.Bhagavan &
    Sri.A.N.Radhakrishna, Advocates]


AND:

Karnataka State Pollution
Control Board,
Represented by its
Environmental Officer,
(Regional Officer),
Regional Office, Bangalore
East (Region II), No.25,
22nd Floor, P.U.Building,
                                2

Mahatma Gandhi Road,
Bangalore-560 001.                      ...Respondent

[By Sri.D.Nagaraj, Advocate]

      This Criminal Petition is filed under Section 482 of the
Cr.P.C. praying to set aside the order issuing process dated
12.09.2006      and      quash       the    proceedings     in
C.C.No.26418/2006 on the file of the VI Additional Chief
Metropolitan Magistrate, Bangalore.

      This Criminal Petition coming for further hearing on
this day, the Court made the following:

                          ORDER

In this petition filed under Section 482 of Cr.P.C., the petitioner arraigned as Accused No.1 in C.C. No.26418/2006 on the file of the VI Additional C.M.M., Bangalore, has sought for quashing the complaint filed by the respondent-Karnataka State Pollution Control Board (For short, 'Board') seeking prosecution of the petitioner and another for the offence punishable under Section 15 of the Environment (Protection) Act,1986 (for short, the Act').

2) The allegations made in the complaint filed by the respondent-Board before the Magistrate are that, the petitioner-company engaged in construction of residential complex comprised of 206 flats in land bearing Survey Nos. 3 48/1, 48/2, 49/1, 49/2, 49/3, 49/4, 50 & 51 of Jailkondanahalli, Sarjapur Road, Bangalore East Taluk, Bangalore Urban District, without obtaining necessary consent from the complainant -Board as required by Sections 25 and 26 of the Water (Prevention and Control of Pollution) Act, 1974 (for short, Water Act') and as required by Environmental Impact Assessment Notification dated 27.01.1994, which is notified by the Ministry of Environment and Forest, Government of India, in exercise of powers conferred under Clause (5) of sub-section (2) of Section-3 of Environment Protection Act, 1986 (for short, 'E.P.Act') read with Rules and as required by Section-21 of the Air (Prevention & Control of Pollution) Act, 1981 (for short, 'Air Act'). That when the officials of the complainant- Board inspected the said site on 15.12.2004, they found that the project proponents have already started construction activities without clearance from the Board and also without obtaining environment clearance from the Ministry of Environment and Forest, Government of India, New Delhi, though such clearance was mandatory. As the 4 petitioner's construction project was also one of the establishments which required obtaining prior clearance from Ministry of Environment and Forest, Government of India and since without obtaining clearance, the petitioner- company had commenced the construction, the Board issued a show-cause notice dated 21.01.2005 to the petitioner/accused. However the accused neither applied for issue of consent clearance for operation of his project regarding construction of the apartment building nor submitted any reply to the show-cause notice. Though subsequently the regional office of the complainant-Board issued a letter dated 06.04.2005 to the accused calling upon him to meet in the office of the Environmental Officer on 12.04.2005 to discuss the technical matters of the project, the accused failed to attend the meeting. One more opportunity was granted to the accused to attend the technical discussion meeting on 13.05.2005, but the accused failed to attend the said meeting also. Therefore, an ex-party decision was taken and by letter dated 15.06.2005. the Board informed the Commissioner of BDA 5 about the accused having undertaken the Apartment Project without applying and obtaining prior consent clearance and requested the Commissioner of BDA to withdraw the licence issued to the accused. In spite of such letters, the accused failed to apply for clearance and thereby the accused has committed offences under Sections 25 and 26 of the Water Act punishable under Section 44 of the said Act, the offence under Section 21 of the Air Act which is punishable under Section 37 of the said Act and also under Section 15 of the E.P.,Act.

3) The learned Magistrate, who took cognizance of the offence alleged in the complaint, directed issue of summons to the petitioners and another arraigned as accused.

4) On coming to know of the same, the petitioner- Company presented this petition seeking to quash the said complaint inter alia on the grounds that, even if allegations made in the complaint and the documents furnished along with the complaint are taken on their face value, they do 6 not constitute commission of the offence alleged; that the petitioner-company has obtained clearance certificate from the Ministry of Environment and Forest, Government of India on 07.03.2007 and also obtained permission from the Board on 18.09.2006, as such, the petitioner has not committed any offence, as such the complaint is misconceived one; that the application for grant of clearance was made to the Government of India on 27.07.2006 and Board on 23.09.2005 and that the clearance given by the respective authorities would not only be effective prospectively, it would also be effective retrospectively from the date of application, therefore, the construction activities commenced after the date of application cannot be construed as in violation of any provisions of the Act.

5) I have heard the learned counsel appearing for the petitioner as well as the learned counsel for the respondent. Perused the records secured from the court below. The point for consideration is, 7 "Whether the compliant lodged against the petitioner is liable to be quashed."

6) Learned counsel for the petitioner contended that the complaint of the Board presented by its Environmental Officer for the offence punishable under Section 44 of the Water Act and Section 37 of the Air Act, is not maintainable for the reason that the person who has lodged the complaint is not duly authorized by the Board for lodging such complaint and therefore, the cognizance taken on such complaint is also bad in law. It is also further contended that since the petitioner has not commenced any industrial plant, the provisions of Air Act is not applicable.

7) As per sub-section (1) of Section 25 of the Water Act, no person shall, without the previous consent of the State Board, establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land. Section-44 of the Water Act, is 8 the penal section for contravention of Sections- 25 & 26 of the Water Act. Section-49 of the said Act deals with the cognizance of offences. According to sub-section (1) of Section 49, no court shall take cognizance of any offence under this Act except on a complaint made by a Board or any officer authorized in this behalf by it.

8) As per Section 21 of the Air Act, no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area. Section-37 of the said Act is the penal section for the contravention of the provisions of Section 21. Section-43 of the Act deals with cognizance of the offence. According to sub-section (1), no court shall take cognizance of any offence under this Act except on a complaint made by a Board or any officer authorized by it. Therefore, in the light of the provisions of Section 49 of the Water Act, and Section 43 of Air Act, cognizance of any offence under those Acts can be taken only on a complaint made by the Board or by any Officer authorized in that behalf.

9) Perusal of the original records secured from the jurisdictional Magistrate indicates that along with the complaint, no material is produced to show that the Board has passed any resolution to lodge a complaint. The complaint is signed by the Environmental Officer of the Karnataka State Pollution Control Board. A copy of the memo dated 05.08.2006 is available in the records which is duly signed by the Chairman authorizing the Environmental Officer for filing criminal case against M/s. Puravankara Projects Ltd. As per this authorization, the Environmental Officer is authorized to file the complaint alleging the offence under Section 15 of the E.P. Act only. The authorization does not relate to offences either under the Water Act or under the Air Act. Therefore, there is no proper authorization to file a complaint alleging the offence under Water Act or Air Act. The authorization relates only to the offence under Section 15 of the E.P. Act. 1996.

10) In addition to the above, it is not the case of the complainant that the petitioner herein has established or started operating any Industrial Plant. The term 'Industrial 10 Plant' is defined under Section 2(k) of the Air Act to mean, any plant used for any industrial or Industrial purposes and emitting any air pollutant into the atmosphere. Section 2(a) defines 'Air Pollutant' to mean, any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment. On the face of it, the activity said to have been started by the petitioner, cannot be termed as an industrial plant as defined under the Air Act, therefore, in my considered opinion, the provisions of the Air Act are not attracted. However, the learned Magistrate without applying his mind to these factors and without looking into the documents produced along with the complaint properly, appears to have mechanically taken cognizance of the offences punishable under Section 44 of the Water Act and Section 37 of the Air Act, as such, the complaint alleging offence under Water Act and Air Act, cannot be sustained.

11) There is no serious dispute as to the fact that by amended notification dated 07.07.2004, the construction projects were also added as one of the establishments which require clearance from the Ministry of Environment and Forest, Government of India, New Delhi, as per the provisions of the Act. There is also no serious dispute that the petitioner commenced the project of construction of a residential apartment complex comprised of 206 flats in the aforesaid land. According to the complainant, the construction site was inspected by the officials of the complainant-Board on 15.12.2004 and at that time, the proponents of the project had already commenced the construction and by that time, they had not obtained the clearance as required by the Act. It is also not in serious dispute that the petitioner-company subsequently approached the competent authority under the Act and the clearance was accorded to the petitioner by the Ministry of Environment and Forest, Government of India on 07.03.2007 and they have also obtained necessary permission from the complainant-Board on 18.09.2006. It 12 has to be noticed that for the first time, only by notification dated 07.07.2004, the construction project was added as one of the establishments requiring such clearance. Earlier to the date of notification, there was no such requirement on the part of the construction project. It is not in dispute that subsequently, by notification dated 14.09.2006 jurisdiction to grant Environment Clearance was conferred on the State Environment Impact Assessment Authority (for short, 'SEIAA'). Even according to the complainant, on the date of inspection, the alleged construction was only at the stage of digging the earth for foundation and actual construction had not been commenced. No doubt, in the notification dated 07.07.2004 the ongoing construction had been saved, provided the construction had gone beyond the plinth level as on the date of notification. Of course according to the inspection notings, as on 15.12.2004, the construction had not gone beyond the plinth level. Nevertheless, having regard to the fact that the requirement of such clearance was introduced in July 2004 and in view of the fact that subsequently, the petitioner-company has 13 obtained necessary clearance from the competent authorities and since the offence under Section 15 of the Act is punishable with imprisonment which may extend to 5 years or with fine which may extend to Rs.1,00,000/- or with both, in the considered opinion of this court is, instead of directing the petitioner to face the prosecution, interest of justice would be served by directing the petitioner-company to pay maximum fine as provided by Section 15 of the Act. In this regard, I would draw sustenance from the order passed by this Court in identical matter in Criminal Petition No.2782/2008 disposed of on 17.07.2008. In the said case, the petitioner therein was sought to be prosecuted for the offence punishable under Section. 15 of the Act. During the course of the trial, the complainant-Board by filing a memo reported that subsequently there is no pollution problem in the industry and since the industry has obtained clearance from the authority as on the date of lodging of the complaint, it was submitted by the complainant before the court that the plea of the accused may be accepted and the matter may be 14 closed by directing the accused to pay maximum penalty prescribed. However, the trial court refused to accept the said memo and ordered continuation of the proceedings. The said order was questioned before this Court by presentation of a petition under Section 482 of Cr.P.C., wherein this court having regard to the fact that, subsequently environment clearance had been obtained by the accused from the State Government and since it was reported that there is no pollution problem in the industry, directed that the prosecution against the petitioner- company should be closed by accepting the maximum fine of Rs.1,00,000/- as provided under Section 15 of the Act.

12) In the case on hand also, though as found by the officials of the complainant-Board on the date of the inspection certain construction activities were going on without obtaining the required clearance from the competent authority, subsequently, applications were filed before the competent authority seeking clearance and the same was granted by the competent authority before filing of the complaint. Thus, subsequent grant of clearance 15 would indicate that the project was not in violation of any of the provisions of the Act. Therefore, having regard to the above subsequent development, it is just and necessary to direct closure of the prosecution by directing the petitioner- company to pay maximum fine provided under Section 15 of the Act. In this view of the matter, the petition is disposed of directing the petitioner to pay fine of Rs.1,00,000/- (Rupees One Lakh only) within four weeks from today before the complainant-Board. Upon depositing such fine, the proceedings in C.C. No.26418/2006 on the file of the VI Additional C.M.M., Bangalore, shall stand closed.

Sd/-

JUDGE KGR*