Karnataka High Court
M/S Keppel Puravankara Development P ... vs Karnataka State Pollution Control ... on 7 June, 2013
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.5206/2008
BETWEEN:
M/s. Keppel Puravankara
Development (P) Ltd.,
A Company registered under the
Companies Act, 1956, and
Having its office at No.39, 8th Main, '
Vasanthnagar, Bangalore-560 052,
Having its Site office at
"Elita Promenade",
Survey Nos.101/A, 101/B, 101/2,
103/1, 104 (P) and 105/5
Of Kothnur Village,
Uttarahalli Hobli,
Bangalore South Taluk,
Represented by its
Authorised Representative,
Mr.Kannan.S.Iyer. ... Petitioner
[By Sri.A.H.Baghavan &
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,
2
8th Floor, P.U.Building,
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 18.09.2006 and quash the proceedings in
C.C.No.27616/2006 on the file of the II 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.27616/2006 on the file of the II 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').
3
2) The brief facts leading to presentation of the complaint by the respondent-Board are that, the petitioner-company engaged in construction of residential complex comprised of 1617 flats in land bearing Survey No 101/1A, 101/2, 101/B, 103/1 104(P) and 105/5 of Kothnur Village, Utharahalli Hobli, Bangalore South Taluk, without obtaining clearance from the Ministry of Environment and Forest, Government of India, New Delhi. In this regard a show- cause notice dated 06.01.2006 was issued by the Board to the petitioner-company. When the officials of the complainant-Board inspected the said site on 15.02.2006, they found that the project proponents have already started construction 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 in the light of the notification issued on 27.01.1994 whereunder construction project was also included as one of the establishment to which the 4 provisions of the Act were made applicable. As the 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 filed complaint before the Jurisdictional Magistrate alleging commission of offence punishable under Section 15 of the 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 not constitute 5 commission of the offence alleged; that the petitioner- company has obtained clearance certificate from the Ministry of Environment and Forest, Government of India on 04.05.2007 and corrigendum dated 28.05.2007, and also obtained permission from the Board on 28.08.2006, 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 21.03.2007 and Board on 09.09.2005 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. The point for consideration is,- 6
"Whether the complaint lodged
against the petitioner is liable to be
quashed ? "
6) There is no serious dispute as to the fact
that by 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 1617 flats in the aforesaid land. According to the complainant, the construction site was inspected by the officials of the complainant-Board on 15.02.2006 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 7 clearance was accorded to the petitioner by the Ministry of Environment and Forest, Government of India on 04.05.2007 and corrigendum dated 05.07.2007 and they have also obtained necessary permission from the complainant-Board on 28.08.2006. It 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 8 plinth level as on the date of notification. Of course according to the inspection notings, as on 15.02.2006, 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 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 9 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 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 10 maximum fine of Rs.1,00,000/- as provided under Section 15 of the Act.
7) 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 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 11 before the complainant-Board. Upon depositing such fine, the proceedings in C.C. No.27616/2006 on the file of the II Additional C.M.M., Bangalore, shall stand closed.
Sd/-
JUDGE KGR*