Jharkhand High Court
M/S. Super Smelters Ltd (Re-Rolling ... vs The State Of Jharkhand Through The ... on 14 March, 2023
Author: Subhash Chand
Bench: Subhash Chand
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 189 of 2015
M/s. Super Smelters Ltd (Re-Rolling Division), having its office at Addi Bunglow Road
Tilaiya Basti, PO-Jhumri Telaiya, PS- Tilaiya Dist-Koderma through its Director Sri Deepak
Kumar son of Sita Ram Agarwal, resident of 39, Shakespeare Sarani, Premlata Building,
3rd Floor, Kolkatta P.O. & P.S. Shakespeare Sarani Dist-Koltatta. .... ... Petitioner
Versus
1. The State of Jharkhand through the Secretary, Ministry of Environment, Govt. of
Jharkhand, Ranchi P.O. & P.S.-Dhurwa Dist-Ranchi.
2. Regional Officer, Jharkhand State Pollution Control Board, having its Regional office
at near PTC Chowk, Hazaribagh, PO & PS Hazaribagh, Dist-Hazaribagh.
3. The Jharkhand State Pollution Control Board having its office at T.A. Building, Ground
Floor, Dhurwa, Ranchi P.O. & P.S.-Dhurwa Dist-Ranchi
4. The Member Secretary, Jharkhand State Pollution Control Board having its office at
T.A. Building, Ground Floor, Dhurwa, Ranchi P.O. & P.S.-Dhurwa Dist-Ranchi.
5. The Union of India through its Secretary, Ministry of Environment and Forest, Govt.
of India, Parayavaran Bhawan, New Delhi P.O. & P.S.-Parayavaran Bhawan, Dist-
New Delhi. .... .... Opp. Parties
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND For the Petitioner : Mr. Kaushik Sarkhel, Advocate For the Opp. Parties : Dr, Ashok Kumar Singh, Advocate.
: Mrs. Vandana Bharti, Advocate
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C.A.V. on 03.03.2023 : Pronounced on 14.03.2023
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The instant Cr.M.P. is on behalf of M/s. Super Smelters Ltd., petitioner herein, against State of Jharkhand through the Secretary, Ministry of Environment, Govt. of Jharkhand, Ranchi and four others with the prayer to quash the cognizance order dated 10.12.2014 taken by the court below and all subsequent proceedings thereto in Complaint Case No. 535 of 2014, pending before the Court of S.D.J.M., Koderma on the grounds that the complaint was filed with these allegations that the petitioner is engaged in manufacturing Rolling Mill and applied for grant of N.O.C. and same has been granted by Jharkhand State Pollution Control Board vide letter dated 18.05.2007 and the petitioner has submitted the application for consent to operate on 31.03.2014 and the consent was also granted which was valid up to 30.06.2012. Further the application was moved to grant the consent for a period 01.07.2012 to 30.06.2013 under the Air Act, 1981 and Water Act, 1974, the same was rejected with the reason that the unit comes under the provision of EIA notification 2006 under Environment (Protection) Act, 1986 and the unit required environmental clearance from MoEF, Govt. of India. The Jharkhand State Pollution Control Board also issued a notice on 11.4.2013. In compliance thereto, the petitioner had submitted his reply, same was not found satisfactory and it was alleged that the petitioner had contravened the provisions of Section 15 of the Environment (Protection) Act, 1986. Therefore, the cognizance was taken by the lower -2- court under Section 15 of the Environment (Protection) Act, 1986 against the petitioner. Certified copy of the complaint is Annexure No. 1.
2. The petitioner has not committed the alleged offence as he had submitted an application on 08.12.2006 to obtain N.O.C. from Jharkhand State Pollution Control Board for the expansion of Rolling Mill which is Annexure No.2 of this petition. The petitioner was granted No Objection Certificate on 18.05.2007 under the provisions of Air (Prevention and Control of Pollution) Act and Water (Prevention and Control of Pollution) Act, by the Pollution Control Board. The N.O.C. is Annexure No.3 of this petition. The Jharkhand State Pollution Control Board granted consent to the petitioner for the period from 01.07.2007 to 30.06.2008 which is Annexure No.4. This consent was for the period of one year and the consent was required under the law to file fresh application yearly.
3. Further the successive application was also moved by the petitioner and the consent was granted to the petitioner for a period from 01.07.2008 to 30.06.2009 which is Annexure No.5. Further on the application of the petitioner the consent was granted to the petitioner from 01.07.2009 to 30.06.2010 and 01.07.2010 to 30.06.2011 and 01.07.2011 to 30.06.2012 respectively which are Annexure No. 6 of this petition. Therefore, the consent under Section 21 of the Air Act and under Section 25 of the Water Act was given to the petitioner after fulfilling the requisite condition by petitioner. All of a sudden the petitioner received a show-cause notice on 11.04.2013 which is Annexure No.7 of this petition. The petitioner replied this notice basing on all the grounds stated hereinabove. Photo copy of the reply notice is Annexure No.8 of this petition. The Jharkhand State Pollution Control Board vide order D-1316 dated 27.05.2013 rejected the application of the petitioner for the consent to operate the unit from the period 01.07.2012 to 30.06.2013 and the order of closure of the Rolling Mill Plant was also issued and subsequently clarification issued by MoEF dated 17.12.2008 and solely relying upon the single factor that the unit should be closed down on the basis of necessity of Environment Clearance from MoEF. The copy of this order dated 27th May, 2013 is Annexure No. 9 of this petition. The petitioner further submitted fresh application on 03.06.2013 to SEIAA for Environment Clearance for expansion cum modernization of the unit which is Annexure No. 10 of this petition.
4. Aggrieved from the decision of the Jharkhand State Pollution Control Board, the petitioner approached the National Green Tribunal, New Delhi and vide order -3- dated 07.06.2013, the Tribunal had issued the interim protection of the stay order which is Annexure No. 11 of this petition. Moreover, vide order dated 12.09.2014 the National Green Tribunal had permitted to the petitioner to make a fresh application for environment clearance in respect of original project and also National Green Tribunal made clear that the interim order passed by the Tribunal earlier will continue till the period of completion of the process of grant of Environment Clearance for the original project. The order-sheet dated 12.09.2014 is Annexure No. 12 of this petition.
5. Further the petitioner vide letter No. 26.09.2014 submitted a revised application for environment clearance of the existing project which is pending till date. The photo copy of this application is Annexure No. 13 of this petition. It is apparent from the order dated 18.12.2014 passed by National Green Tribunal that without environment clearance the unit is in operation at the strength of the interim protection granted by the National Green Tribunal dated 07.06.2013. The photo copy of the order dated 18.12.2014 is Annexure No. 14 of this petition. Therefore, the petitioner is running from pillar to post for grant of environment clearance. As such the petitioner has not violated any provision of the law nor had any intention to do so. The petitioner has applied for consent both under Water Act and Air Act and the deemed consent has been granted to the petitioner to operate the unit. The order of taking cognizance suffers no application of judicial mind by the concerned Magistrate. The unit is functioning at the strength of the order dated 07.06.2013 and 18.12.2014 passed by National Green Tribunal. No alleged offence under Section 15 of the Environment Projection Act is made out against the petitioner. Therefore, the alleged impugned order is nothing but abuse of process of the Court and the petitioner has no efficacious remedy but to proceed before this Hon'ble Court.
6. On behalf of O.P.No.2 the counter-affidavit is filed by Dilip Kumar, the Environmental Engineer (In-charge), Jharkhand State Pollution Control Board in which it is averred that the petitioner did not obtain environmental clearance (EC) from Ministry of Environment Forest & Climate Change (MoEF & CC), Govt. of India in terms of Ref. No. F. No. J-11013/83/2008-I (A) 11 (II), dated 17.12.2008 and the unit/plant was being operated in violation of EIA Notification, 2006 under Environment (Protection) Act, 1986. The show-cause notice was also issued by Jharkhand State Pollution Control Board to the petitioner. The petitioner had replied the show-cause notice which was not found satisfactory. Therefore, the petitioner was directed to close down the Rolling Mill Plant -4- with immediate effect which was being operated without obtaining environment clearance from MoEF & CC and CTO from JSPCB. The complaint was filed against the petitioner in which the learned S.D.J.M., Koderma had taken cognizance on 10.12.2014.
7. Heard rival the submissions of learned Counsel of both the parties and perused the record.
8. This fact is admitted that initially N.O.C. was granted to the petitioner on 18.05.2007 by Jharkhand State Pollution Control Board for expansion of Rolling Mills which is evident from Annexure No. 3 of this petition. Further this fact is also admitted that the petitioner had been granted consent to operate his unit yearly for a period of from 01.07.2007 to 30.06.2008, 01.07.2008 to 30.06.2009, 01.07.2009 to 30.06.2010, 01.07.2010 to 30.06.2011 and 01.07.2011 to 30.06.2012 which are Annexure No. 4, 5 and collectively Annexure No. 6 of this petition.
9. The petitioner has received notice on 11.4.2013 to close his unit on the ground that the petitioner had not obtained environment clearance from Ministry of Environment Forest, Govt. of India. This notice is dated 11.04.2013 which is Annexure No.7 of this petition. The petitioner had replied this notice and same was not found satisfactory by Jharkhand State Pollution Control Board.
10. The order of closure of the plant was issued by Jharkhand State Pollution Control Board on 27.05.2013 basing on the ground that the unit was being operated without environment clearance from Ministry of Environment and Forest which is Annexure No. 9 of this petition. The petitioner further moved fresh application on 03.06.2013 for environment clearance for expansion and modernization of his unit which is Annexure No. 10.
11. From perusal of this application, it is evident that this application was moved to Member Secretary, State Environment Impact Assessment Authority (SEIAA) with the prayer to grant environment clearance to the petitioner-M/s Super Smelters Ltd. Further the petitioner had also approached the National Green Tribunal, New Delhi aggrieved from the decision of Jharkhand State Pollution Control Board and the National Green Tribunal had issued an interim protection on 07.06.2013 which is Annexure No.
11. The order passed by the National Green Tribunal is reproduced here-in-below:
"We have heard Learned Counsel appearing for the Appellant in both the Appeals.
Admit. Issue notice to the Respondents by registered post/acknowledgement due an dasti as well. Notice returnable on 22nd July, 2013.-5-
Process to be filed by the Appellant in both the Appeals by Monday i.e. on 10th June, 2013.
The submissions of the learned counsel for the Appellant while insisting for the order of stay is that while the unit in question has started operation from 2007, it was by clarification letter of MOEF dated 17.12.2008, for the first time such unit was required Environmental Clearance from the Government of India.
On reference of the impugned order, we see that even after the clarification letter was issued on 17.12.2008, the Pollution Control Board has been continuously issuing orders every year by way of consent to operate to the unit in question without insisting EC. The impugned order solely relies upon a single factor that the unit should be closed down on the basis of wants of EC. In such view of the matter and also taking into consideration, number of persons have been employed in the unit, we are of the view that the impugned order must be stayed. Accordingly there shall be an order of interim stay of the impugned order of the Respondent No.2 (Pollution Control Board) till the next date of hearing, however, subject to the condition that the Appellant's unit shall comply with all environmental norms as has been laid down by the earlier orders of consent to operate.
We direct the Respondent No.1 (MoEF) to specifically state as to whether the unit requires EC, if so, from what date and what action has been taken by the MoEF as well as the Pollution Control Board from the date of notification to insist the unit in question to apply for EC.
Stand over to 22nd July, 2013.
12. Further the learned Tribunal has passed the order on 13.11.2014. The operative portion of the said order is reproduced here-in-below:
".........In view of the submissions made by the learned counsel appearing for the Project Proponent, we permit the Project Proponent to make fresh application for EC in respect of the original project within 15 days from this day. On receipt of such application the SEIAA shall dispose of the same in accordance with the law as prescribed by the Notification of 2006. We also make it clear that the Interim Order passed by this Tribunal earlier will continue till the period of completion of the process of grant of EC for the original project as contemplated in appendix-IV of 2006 Notification. We make it further clear that the SEIAA shall not proceed with the present proposal for expansion made by the Project Proponent.
The State Pollution Control Board has filed an Inspection Report which is taken on record.
Stand over to 13th November, 2014."
13. Further the learned Tribunal has also passed the order on 18.12.2014 in Appeal No. 69/2013/PB/6/EZ & Appeal No.70/2013/PB/7/EZ (Super Smelters Limited vs. Union of India & Ors.) in which the proceeding of the appeal was adjourned till 15.01.2015. As such it is apparent that the unit of the petitioner is in operation without the environment clearance at the strength of the interim order dated 07.06.2013 passed by the National Green Tribunal in the Appeal No. 70 of 2013 wherein the matter in dispute between the parties is pending till date. As such in the complaint -6- Annexure No. 1 no alleged offence is made out against the accused, petitioner herein, under Section 15 of the Environment (Protection) Act, 1986. The matter in dispute between the parties is pending before the learned National Green Tribunal. Therefore, the impugned order of taking cognizance by the learned Trial Court is nothing but abuse of process of the Court and the same needs interference.
14. Moreover, on behalf of O.P.No.2 the counter-affidavit is filed by Environmental Engineer (In-charge), Jharkhand State Pollution Control Board. From perusal of Annexure No.1 of counter-affidavit, it is found that vide letter No.EC/SEIAA/2013 dated 31.12.2015 following the decision of SEIAA the environmental clearance was issued to the project "Modernisation cum Expansion of TMT product of M/s Super Smelters Ltd. village Telaiya Basti Tehsil-Koderma, Dist. Koderma Jharkhand under the specific condition. This letter was issued on 31.12.2015 by the Member Secretary, State Level Environment Impact Assessment Authority, Jharkhand while the complaint against the petitioner was lodged on 10.12.2014 on which the cognizance was taken on 10.12.2014 by the learned S.D.J.M., Koderma.
15. Moreover, in the case in hand, the petitioner has been made accused without making company as an accused. As such the petitioner cannot be prosecuted without making the company as an accused in view of the decision rendered by Hon'ble Apex Court in "Aneeta Hada vs M/s Godfather Travel and Tour", reported in (2012) 5 SCC 661.
16. The Hon'ble Apex Court held in "Jaswant Singh vs. State of Punjab,"
2021 Live Law (SC) 623:
"The criminal cases having overwhelmingly and predominatingly a civil flavour stand on different footing for the purpose of quashing a criminal proceeding."
The Hon'ble Apex Court held in "Wyeth Ltd. vs. State of Bihar" 2022 Live Law (SC) 721:
" if no offence is made out from the careful reading of complaint and complaint deserves to be quashed. When the complaint itself does not disclose more than a commercial relationship which broke, it is not possible to enlarge the scope of his complaint by merely adding the language used in the text of I.P.C.
17. In the case in hand from the documentary evidence adduced on behalf of the petitioner it is evident that the matter in dispute between the parties is already pending before the court of learned National Green Tribunal till date. As such no alleged offence -7- is made out from the allegations made in the complaint as alleged by the complainant against the petitioner. As such it is the fit case to quash the cognizance order & subsequent proceedings thereto pending before the court below by exercising power u/s 482 of Cr.P.C.
18. Accordingly, this Cr. Misc. Petition is hereby allowed and the impugned order of taking cognizance dated 10.12.2014 in G.R.No. 535 of 2014 passed by S.D.J.M., Koderma and the onward proceedings are hereby quashed.
(Subhash Chand, J.) P.K.S./N.A.F.R.