Gujarat High Court
M/S Ribecca Laminates vs State Of Gujarat on 8 July, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 41
of 2020
With
R/CRIMINAL REVISION APPLICATION NO. 43 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==================================================
M/S RIBECCA LAMINATES & ORS.
Versus
STATE OF GUJARAT & ANR.
==================================================
Appearance:
MR YATIN OZA, SENIOR COUNSEL WITH MR VICKY B MEHTA(5422) for
the Applicant(s) No. 1,2,3
MR RUTVIJ S OZA(5594) for the Respondent(s) No. 2
MR HARDIK MEHTA, ADDL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
==================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/07/2024
Page 1 of 36
Downloaded on : Fri Aug 02 21:17:09 IST 2024
NEUTRAL CITATION
R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024
undefined
COMMON ORAL JUDGMENT
1. The applicants are the original accused of the Criminal Case No. 33 of 2013 whereby they have been convicted by the learned Additional Chief Judicial Magistrate, Morbi on 12.07.2014, for the offences punishable under Section 15 of the Environment (Protection) Act, 1986 (for short 'the Act'). M/s. Ribecca Laminates - a partnership firm was punished with fine of Rs. Rs. 75,000/- and in default of payment of amount of fine, its partners being accused Nos. 2 to 8 to undergo 6 months simple imprisonment.
1.1 Accused Nos. 2 to 8 found guilty for the offences punishable under Section 15 of the Act, were sentenced for 2 years RI with a fine of Rs.40,000/- each. Thus, total Rs.2,60,000/-, and in default of payment of fine, further to undergo six months SI.
1.2 The said judgment was challenged by way of filing an Page 2 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined appeal being Criminal Appeal No.18 of 2014 by accused Nos. 2 and 3 and Criminal Appeal No.19 of 2014 by rest of the accused before the learned 2 nd Additional Sessions Judge, Morbi. The appellate Court dismissed both the appeals and confirmed the judgment of the trial Court on 13.12.2019. 1.3 Criminal Revision Application No.41 of 2020 is arising out of the judgment and order in Criminal Appeal No.18 of 2014, whereas Criminal Revision Application No.43 of 2020 is in connection to Criminal Appeal No.19 of 2014.
2. The facts of the case as can be culled out from the record suggest that the complainant - Gujarat Pollution Control Board (GPCB), Rajkot had filed a complaint against accused No.1 - company and its 7 partners in business of production of laminates sheets as violating the rules / provisions of Ministry of Environment and Forest Department Notification NO. S.O.1533 dated 14.09.2006, the provisions of category 5(f) by manufacturing resins without obtaining No Objection Page 3 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined Certificate (NOC) from the Central Government and therefore, the company and its partners were made liable for violating the Rules so also of not having obtained the Environment Clearance (EC) certificate from the Central Government, hence committing offence punishable under section 15 of the Act. 2.1 The officers of the GPCB visited the premises of accused No.1 - company on 22.08.2012 at 11:30 for inspection and at that time the accused No.3 - Kanjibhai was present, in whose presence the inspection report was prepared. The inspection report sent to the GPCB and the Senior Environment Officer, directed accused No.1 to immediately stop manufacturing resins and obtain the NOC and CCA certificate and a communication was also sent to PGVCL to disconnect the electricity of the company.
2.2 Further for verification of the status of the direction given by the Senior Environment Officer, an officer of the GPCB on 07.11.2012 at about 18:10 hours inspected the Page 4 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined company and issued a notice, which was received by accused No.1 and its partner Gopalbhai. The officer of the GPCB made a report that company and its partners had not obtained NOC and CCA, violating the Notification.
3. Heard Learned Senior Counsel Mr. Yatin Oza with learned advocate Mr. Vicky Mehta for the applicants, learned advocate Mr. Rutvij Oza for respondent - original complainant and learned APP Mr. Hardik Mehta for respondent - State.
4. Learned Senior Counsel Mr. Yatin Oza submitted that the breach of the notification could only be considered, when the production operation was under progress, when actually there was no working of manufacturing resins in the plant. 4.1 Learned Senior Counsel Mr. Yatin Oza submitted that the complaint was filed on the basis of the inspection report dated 22.08.2012 and 07.11.2012. As such, only report dated 22.08.2012 was produced at Exh.48 and other report dated Page 5 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined 07.11.2012 was neither exhibited nor produced by the complainant while both the reports specifically indicate that the plant was closed because of power staggering. 4.2 Learned Senior Counsel Mr. Yatin Oza submitted that the public notice had been issued by the GPCB on 07.12.2012 under the signature of the Under Secretary of the GPCB through which public hearing was fixed for 25.01.2013 at Morbi, so for the necessary procedures to be adopted in connection with the Environment clearance. 4.3 Learned Senior Counsel Mr. Yatin Oza submitted that had the Court come to a conclusion that setting up two reaction vessels was in breach of notification then the Court can always consider this fact in the context of 'ex-post-facto environment clearance' obtained, since there was no any complaint of breach of Environmental laws. Mr. Oza stated that there is no complaint of environmental pollution.
Page 6 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024
NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined 4.4 Referring to the evidence of the witness examined by the prosecution, specifically evidence of Ashwinkumar Omprakash Trivedi produced at Exh.48, Learned Senior Counsel Mr. Yatin Oza submitted that during the inspection on 22.08.2012 the witness has confirmed in connection with his visit that on the day of his visit the unit was closed and while checking the register of the company it could not be found whether any resins was produced on the previous day. The witness has also confirmed that they have got no documents which shows that from 11.12.2011 to 22.08.2012 the unit was producing resins. The witness also confirmed that on 07.11.2012 it was not a day of staggering. It is also confirmed that for getting the Environment Clearance (EC) an undertaking is required to be given by the company. The witness has further admitted that public notice was issued and the objection was sought for from the public and thereafter obtaining the indemnity bond from the company, EC came to be issued.
4.5 Another witness Jayesh Vyas, who has filed the Page 7 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined complaint, was serving at Rajkot office. According to the witness, on 22.08.2012 when the team had visited the company premises, they came to know, that prior to starting the Unit, no permission has been taken by the company management.
4.6 According to this witness, the company is producing laminate sheets and for that purpose, resin plant has been installed. The report of 22.08.2012 was by a team of three members. According to the witness as per the Notification dated 14.09.2006, EC Certificate is required for producing resin as per the schedule of Environment and Forest Department Notification No.SO/1533 dated 14.09.2006. The witness stated that on the basis of the inspection report, the higher officer at Gandhinagar had passed an order against the company to shutdown the unit. Said order was produced at Exh.25. As per the witness, notice was served upon the company and to verify the fact, whether there was compliance of the notice, a team had visited the company on 07.11.2012. According to the Page 8 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined witness, on 07.11.2012, when they visited the company premises, they had noted that accused have installed reaction vessel for production of resin and inspite of the order production continued and accordingly report was sent to the Head Office at Gandhinagar which was produced by Mr. Ashwinkumar O. Trivedi who had been examined at Exh.48. 4.7 According to the witness Mr. Jayesh Vyas on 17.10.2012 direction was given to the company to shutdown and to obtain NOC, CCA and further PGVCL had disconnected electricity supply. The witness stated that on inspection on 07.11.2012, they found that PGVCL had disconnected the electric supply in compliance of the order.
4.8 In his cross examination, witness Mr. Jayesh Vyas has confirmed that he himself has not visited the place, but denied the suggestion that he has no personal information, however, confirming that on the basis of inspection report he has filed a complaint. He has affirmed that under Section 23 and 24 of Page 9 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined the Water Pollution Act and Air Pollution Act respectively, the format of notice has been given to visit and inspect the premises. He further confirms that inspection report was sent online and in such online report there is no signature of the officer, who had prepared the same. The witness has confirmed that on 07.11.2012 the company was close, and the report noted that no production was in operation. 4.9 In support of the arguments, learned Senior Counsel Mr. Yatin Oza relied upon the following decisions;
(1) Farook Shaikh vs. State of Gujarat reported in 2013 (3) GLH 288 (2) M/s Electrothem (India) Ltd. vs Patel Vipulkumar Ramjibhai, Civil Appeal No. 722 of 2016 (Arising out of SLP (Civil) No.16860 of 2012)
5. Learned advocate Mr. Rutvij Oza for respondent No.2 - GPCB by referring the judgment in case of Alembic Pharmaceuticals Ltd. vs. Rohit Prajapati reported in 2020 (17) Page 10 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined SCC 157 submitted that Notification dated 14.09.2006 directs requirement of prior Environment clearance, before any construction work by the management or before the unit get started. Only exception given is for securing land. 5.1 Learned advocate Mr. Rutvij Oza referring to notification mandating prior environment clearance submitted that there are four stages to be complied with, in receiving EC, prior to the operation and function of new projects. It is submitted that conducting a public hearing, screening, scoping and appraisal are components of the decision making process which ensures that the likely impacts of the industrial activity are considered in the decision making process.
5.2 Mr. Oza thus stated that in the judgment of Alembic Pharmaceuticals Ltd. (supra) the Apex Court has dealt with the concept of 'ex-post- facto EC' where it was noted that the environment law cannot countenance the notion of an 'ex post facto clearance', which would be contrary to both the Page 11 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined precautionary principle as well as the need for sustainable development.
6. Perusal of report dated 07.11.2012 notes that the inspection was held at 18:10 hrs. for air, water, hazards. The report reflects the production starting date as 11.12.2011, Water consumption in kilo liters per day 5.000 with 1 bore- well, Waste water generation/discharge (klpd) 0.500, source of water supply is shown Narmada Line. Disposal mode of industrial / domestic is shown as zero discharge/ not specified, discharge pt/final receiving body shows as 'Not applicable'. Status of water content under the water act is not specified, effluent treatment plant is not specified. In column related to dirty water purification plant, it is shown as 'fully complied'. Compliance of EC Notification 2006 is shown as 'still pending'. There is 'partial compliance' of the details to be sent to the board regarding fuel used in the boiler.
Against the column of sending the details, regarding Page 12 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined place of public hearing, to the board and the collector office is shown as 'fully complied'. While for column of taking NOC/CCA from the board before starting any production is shown as 'partial compliance'.
6.1 Further in the report, in answer to 'Is Industry ZERO DISCHARGE category? the answer is shown as 'yes' and distance from residential area is shown as 2 kms and from the water body also it is shown as 2 kms from the village. 6.2 The report dated 07.11.2012 is produced at Exh.53, wherein it is directed to comply with the EC Notification 2006 and also directed that after obtaining EC only, the resin plant can be started. It was also directed to comply with the closure order.
6.3 The public notice dated 07.12.2012 was also issued asking all plausible stake holder of the project to remain present in the public hearing or sent their response in writing Page 13 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined to Member Secretary, GPCB.
6.4 As per the facts of the case, on 22.08.2012 a visit was made. Notice was also given and it was deposed by the witness that since the company had not replied, thus to verify the compliance of the report dated 22.08.2012, they had inspected the premises on 07.11.2012. The report dated 07.11.2012 shows that production had started on 11.12.2011 but none of the witnesses could show as to what was the production, nothing with reference to product was produced on record. The witness had not examined any registers of the company nor any material. The witness Arvind Trivedi who visited the plant, during his cross examination having read the complaint, deposed that he has not stated that the unit of M/s. Ribecca Laminates has started the production from 11.12.2011. The witness had visited the company on 22.08.2012. However, he had not given any notice to see any Register or raw material to find out whether production was actually in force and what was the product that was produced. He also stated Page 14 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined that on 22.08.2012, he has not stated that the production of resin was in operation. He has also affirmed that there was no material which suggest that production of resin has started. In fact on record it appears that the cause to issue notice was installation of two reaction vessels.
6.5 The report dated 28.08.2012 wants to reflect that during the visit, the unit was not found in operation due to power staggering but the report wants to impress looking to the condition that it is already in working condition. The GPCB inspection report was under Air, Water, Hazardous under Section 23 of the Water Act, 1974, under Section 24 of the Air Act, 1981 and under Section 10 of the EP Act, 1986 which noted that Unit has one pressing machine and two dryers. Water source is from Gujarat Infrastructure Limited. Unit having resin plant with two reaction vessels and steam evaporator and senting tank as ETP. Unit having Boiler and TFH with common stack @ 120 feet SMF provided with stack. Cyclone provided as APCM separately with Boiler & TFH. Page 15 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024
NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined Lignite is used as fuel in the boiler & TFH. The report concludes that the Unit was directed to stop operation of resin plant, till EC obtained, with a warning that otherwise Board will take action under EPA for EC-2006 violation. The report noted that the industrial plant was not in operation during visit and notes that the unit is engaged in manufacturing of the laminated sheets and further notes that the resin plant not found in operation.
6.6 The report dated 22.08.2012 is also with specific instruction for setting up a plant for purification of dirty water. It was directed to obtain EC and thereafter only to start the plant or else would be considered to face consequence for non-compliance of the EP Act. The information regarding public hearing under their EC Application, was ordered to be sent to their office as well as to the Collector office, Rajkot and also directed to start the production after obtaining NOC / CCA. The necessary observation was 'No discharge from process Resin Plant Vessing washing taken in ETP'. Page 16 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024
NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined 6.7 The notification dated 14.09.2006 is issued by the Ministry of Environment and Forest. The plant falls under category 5(f) of such notification.
7. Learned advocate Mr. Rutvij Oza stated that the word 'prior' with the EC itself justifies that without any prior clearance no project or entity can be started. Mr. Oza referring to the report of 22.08.2012 states that when the visit was made, there were two reaction vessels, but on the date of visit because of power staggering, there was no work but according to the report looking to the situation machinery was already in working condition.
7.1 Record shows that the Member Secretary, GPCB had given public notice on 07.12.2012 for public hearing on 25.02.2013. The judgment referred by learned Senior Counsel Mr. Yatin Oza of Farook Shaikh (supra) is to buttress his arguments as regards ex-post facto permission. While referring Page 17 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined to the provision for establishing resin plant in notification dated 14.09.2006, submitted that though prior approval of the Central Government is necessary as per the pre condition for authorization, submitted that since production had not started, ex-post-facto environment clearance can be approved. 7.2 The Supreme Court of India in Essar Oil v. Halar Utkarsh Samiti, (2004) 2 SCC 392 said that the sole aim, is to balance economic and social needs on the one hand with environmental considerations on the other. However, in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in population together with the consequential demands to sustain population has resulted in the concreting of open lands, cutting down of forests, filling up of lakes and the pollution of water resources and the very air that we breathe. However, there need not necessarily be a deadlock between developments on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the Page 18 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined two since neither one can be sacrificed at the alter of the other. A similar view was taken by the Hon'ble Supreme Court of India in Indian Council for Environ-Legal Action v UOI, (1996) 5 SCC 281 that while economic development should not be allowed to take place at the cost of ecology or by causing widespread environmental destruction and violation; at the same time the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment should go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of the environment. Intellectuals Forum, Tirupathi v. State of Andhra Pradesh, AIR 2006 SC 1350.
7.3 Notification dated 14.09.2006 deals with prior environment clearance in following terms;
"2."Requirements of prior Environmental Clearance (E.C.) :- The following projects or activities shall require prior environment clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Page 19 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined Central Government in the Ministry of Environment and Forest for matters following under category "A" in the Schedule and at State Level the State Environment Impact Assessment Authority (SEIAA) for matters following under category "B", in the said schedule, before any construction work, or preparation of land by the project management except for securing land, is started on the projects or activities.
(i) All new projects or activities listed in the schedule to this notification.
(ii) Expansion and modernization of existing projects or activities listed in the schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the schedule, after expansion or modernization;
(iii) Any change in product-mix in an existing manufacturing unit included in schedule beyond the specified range.
6. Application for prior Environment Clearance (E.C.) An application seeking prior Environment Clearance in all cases shall be made in the prescribed form 1 annexed herewith and Supplementary Form 1A, if applicable, as given in Appendix II, after the identification of prospective site(s) for the project and / or activities to which the application relates, before commencing any construction activity or preparation of land, at the site by the applicant. The applicant shall furnish, along with the application, a copy of the pre-feasibility project report except that, in case of construction projects or activities (item 8 of the Schedule) in addition to Form I and the supplementary Form 1A, a copy of conceptual plant shall be provided instead of the pre-feasibility report." Page 20 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024
NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined 7.4 In Farook Shaikh (supra), which is relied upon by learned Senior Counsel Mr. Yatin Oza, the Division Bench of this Court, has relied upon a decision in case of Ashok Kumar Das vs. University of Burdwan reported in 2010 (3) SCC 616 , wherein it is observed that;
"7. In Black's Law Dictionary (Fifth Edition), the word "approval" has been explained thus: "the act of confirming, ratifying, assenting, sanctioning, or consenting to some act or thing done by another." Hence, approval to an act or decision can also be subsequent to the act or decision.
8. In U. P. Avas Evam Vikas Parishad (supra), this Court made the distinction between permission, prior approval and approval. Para 6 of the judgment is quoted hereinbelow:
"6. This Court in Life Insurance Corpn. of India v. Escorts Ltd. [(1986) 1 SCC 264], considering the distinction between "special permission" and "general permission", previous approval" or "prior approval" in para 63 held that: "We are conscious that the word `prior' or `previous' may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) of the Act."
Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act, it was stated in Lord Krishna Textiles Mills Ltd. v. Workmen [AIR 1961 SC 860], that the Management need not obtain the previous consent before taking any action. The requirement that the Management must obtain approval was distinguished Page 21 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined from the requirement that it must obtain permission, of which mention is made in Section 33(1)."
9. Following the decision in U. P. Avas Evam Vikas Parishad (supra), this Court again held in High Court of Judicature for Rajasthan v. P. P. Singh & Ors. (supra) in para 40:
"When an approval is required, an action holds good and only if it is disapproved it loses its force. Only when a permission is required, the decision does not become effective till permission is obtained. (See U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd.)."
7.5 Public Interest Litigation, alleging unauthorized occupation of forest land by a company without prior approval of the Central Government was the focus of the dispute in the referred Farook Shaikh's case (supra). The ex-post facto approval was urged and the Division Bench of this Court dealt with the expression 'prior approval' and the scope within the meaning of Section 2 of the Forest (Conservation) Act, 1980 to note that it clearly shows that prior approval of the Central Government is mandatory as well as a pre-condition of the grant of lease of forest lands for non-forest purpose and if the Central Government grants the approval after the stage when the company had put up a construction, it would be Page 22 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined considered as ex-post facto approval, which is not permissible in law. The Division Bench notes that there is no order, passed by State Government or other Authority directing that 2,76,000/- sq. mtrs of forest land which company is occupying may be used for non-forest purpose, it will not amount to granting ex-post facto approval and it is ultimately for the Central Government to take an appropriate decision in the matter and the Court should not usurp its jurisdiction. State Government was directed to immediately take steps for demolition and taking over the possession of the land, in the event the Central Government decides not to grant approval and regularize the possession.
7.6 Another judgment in case of M/s. Electrotherm Ltd. (supra) by the Hon'ble Supreme Court in Civil Appeal No.7222 of 2016 arising out of SLP (Civil) No.16860 of 2012, it is observed that;
"16. Public consultation/public hearing is one of the important stages while considering the matter for grant of Environmental Clearance. The minutes of the meetings held on 9-11 February, 2009 show that the request of the Appellant for exemption Page 23 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined from the requirement of public hearing was accepted by the Committee. The observations of the Committee suggest that there would be no additional land requirement, ground water drawl and certain other features. However the water requirement, which is a community resource, was definitely going to be of greater order in addition to the fact that the expansion of the project would have entailed additional pollution load.
17. xxxx xxxx xxxx
18. In the case of Lafarge (supra) public consultation/public hearing was considered and found to be mandatory requirement of the Environmental Clearance process by this Court. In its conclusions culled out in paragraph 122 (xiv) as regards public consultation/public hearing, it was observed by this Court:-
"(xiv) The public consultation or public hearing as it is commonly known, is a mandatory requirement of the Environment Clearance process and provides an effective forum for any person aggrieved by any aspect of any project to register and seek redressal of his/her grievances.
19. At the same time the observations by this Court while summing up the discussion in paragraph 119 are quite eloquent:-
"......It cannot be gainsaid that utilization of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. In the circumstances, barring exceptions, decisions relating to utilization of natural resources have to be tested on the anvil of the well-recognised principles of judicial review. Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision?Page 24 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024
NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined Thus, the Court should review the decision- making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint." In terms of the principles as laid down by this Court in the case of Lafarge (supra), we find that the decision making process in doing away with or in granting exemption from public consultation/public hearing, was not based on correct principles and as such the decision was invalid and improper."
7.7 In M/s Electrothem (India) Ltd., the Court has concluded the case in Paragraph 20 as under:-
"At the same time, we cannot lose sight of the fact that in pursuance of Environmental Clearance dated 27.01.2010, the expansion of the project has been undertaken and as reported by CPCB in its affidavit filed on 07.07.2014, most of the recommendations made by CPCB are complied with. In our considered view, the interest of justice would be sub-served if that part of the decision exempting public consultation/public hearing is set aside and the matter is relegated back to the concerned authorities to effectuate public consultation/public hearing. However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court. If the public consultation/public hearing results in a negative mandate against the expansion of the project, the authorities would do well to direct and ensure scaling Page 25 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined down of the activities to the level that was permitted by Environmental Clearance dated 20.02.2008. If public consultation/public hearing reflects in favour of the expansion of the project, Environmental Clearance dated 27.01.2010 would hold good and be fully operative. In other words, at this length of time when the expansion has already been undertaken, in the peculiar facts of this case and in order to meet ends of justice, we deem it appropriate to change the nature of requirement of public consultation/public hearing from pre- decisional to post-decisional. The public consultation/public hearing shall be organized by the concerned authorities in three months from today."
8. If we refer Section 15 of the Environment Act, which reads as under;
"15. PENALTY FOR CONTRAVENTION OF THE PROVISIONS OF THE ACT AND THE RULES, ORDERS AND DIRECTIONS.- (1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.
(2) If the failure or contravention referred to in sub-section Page 26 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years."
The section which is produced herein above envisaged upon penalty for contravention of the provisions of the Act and the Rules, orders and direction may punish with the imprisonment which can extend to 5 years and fine which can extend to Rs.1 lac.
8.1 Section 16 of the Environment Act reproduces here under;
"16. OFFENCES BY COMPANIES.- (1) Where any offence under this Act has been committed by a company, every person who, at the time the offence was committed, was directly in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub- section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also Page 27 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."
9. It appears that the company is working after public hearing and EC. According to the witnesses of the GPCB, the plant was not in operation. The concern was about installation of two vessels. The evidence also justifies that nothing was taken as an evidence of production of resin laminates. No evidence regarding raw material register was taken on record. Though a direction was given to the PGVCL to disconnect that electricity supply, no evidence regarding prior use of electricity i.e. bills etc. has been collected. Penalty is for the failure to comply with the provision of the Act or rules made or orders or direction issued thereunder and even the contravention. The evidence on record shows that application for EC was already moved. Public hearing took place EC was granted. The 'prior approval' of EC is with report to the starting of projects or activities. The contravention would be by construction work preparation of land by project management at the site for the project/or activities. Whether project undertaken was expansion Page 28 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined and modernization of existing projects or activities or was totally a new project had not been proved on record to invite any penal provision. Whether there was any construction of the unit for the project or activities is not proved, only complaint is that the resin plant was in operation. With the use of water till zero discharge whether any production of resin is possible. All these have remained unanswered. As per the evidence of witness Jayesh Vyas, they visited M/s. Ribecca Laminates which is doing the work in laminates and for that purpose has installed resin plant.
9.1 Here in this case, the witness were of the view that the production was in progress, while in fact on the day of inspection no production work was going, nor the officers collected any evidence from the place by way of Registers or any sample or material which could have been used for producing resin. During the course of trial, public hearing took place as was scheduled to be on 25.01.2013 for the purpose of environment clearance. The public hearing was for the purpose Page 29 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined of environment impact assessment. The draft report and summary of the report of the project had been sent to the authorities and office of the District Collector, Rajkot, District Development Officer, Rajkot, District Industry Center, Rajkot, Taluka Development Officer, Taluka; Morbi, Dist; Rajkot and Chief Conservator of Forest, Ministry of Environment and Forest and Regional office of Gujarat Pollution Control Board, Rajkot. The public hearing was fixed at M/s. Ribecca Laminates at survey No.132/P1, National Highway No.8-A, Near Sokhada Bus Stop, Village Bnahadurgardh, Taluka Morbi, District Rajkot for production of Phenol Formaldehyde Resin - 87.5 MT/Month & Melamine Formaldehyde Resin - 37.5 MT/Month for production of Laminates Sheet - 69000 Sheets/ Month.
9.1.2 The decision convicting the petitioners was given on 12.07.2014. The learned Judge has noted that before any construction of Synthetic Organic Chemical Plant, EC Certificate was required to be compulsorily taken and before Page 30 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined that the construction of the resin plant for the production of resin by M/s Ribecca Laminates was there. On what basis the learned Trial Court Judge came to the conclusion is not recorded. There is no complaint of any construction on the site. What was the site approved for the project or activities has not been proved. The Company was in the business of preparing lamination sheet. The learned Judge has referred to Column 5(f) of the Notification dated 14.09.2006 which is for Synthetic Organic Chemicals industry (dyes & dye intermediates; bulk drugs and intermediates excluding drug formulations; synthetic rubbers; basis organic chemicals, other synthetic organic chemicals and chemical intermediates. Learned Judge has noted that in category 5(f), the leather complex has been included in the category and thus went on to examine, whether resin synthetic would fall under the organic synthetic faux leather. The learned Judge noted Faux leather (Rexine) is primarily vinyl (polyviny) chloride, or PVC). but also contains plasticizers to make it flexible (as compared to PVC tubling), stabilizers to make it light & ozone resistant Page 31 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined & the fabric backing. The backing is probably cotton, but could also be nylon or polyester. The plasticizers, usually a phthalate of some sort are generally considered 'safe', but will probably break down some when burnt. The stabilizers are typically having metals (lead etc.) but those won't vaporize, or likely even melt out when the fabric burnt. The chemical formula is ;
'H-(CH=CCI)-(CH=CCI)-(CH=CCI)-----CCI-H' (represents the several thousand vinyl groups in the middle of the pattern keeps repeating) While no witness has explained this component nor the chemical component for the product was called for where the Criminal Courts are required to bear in mind that prosecution in Criminal Courts has to be proved beyond reasonable doubt. 9.1.3 The learned Judge thus found that resin leather would fall under the definition of synthetic organic chemical and when such chemical factory is to be established and the construction is to be made then as per the Notification of the Page 32 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined Ministry of Environment and Forest S. O. 1533 dated 14.09.2006 a prior approval is compulsory and the accused though having knowledge of such notification had not procured the EC certificate from the GPCB. Learned Judge has also noted about the undertaking filed by the accused to apprise the Court that there is no production of resin in the company. Even in statement under Section 313 of the Code of Criminal Procedure while answering the evidence against them the accused had stated that they have not started the production of resin and also stated that the officers have admitted that production of resin has not been initiated nor they have started any preparation for the same. The accused had informed the Court that the false complaint has been filed against them.
9.2 The learned Judge was required to keep in mind that the proceedings against the accused were under Section 15 of the Environment (Protection) Act, 1986, where the Act provides for protection to the environment. Here it was very much on Page 33 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined record and as admitted by the witnesses that the production of resin has yet not started in the factory. The only cause which led to the complaint is installation of two reactor vessels. Exh.25 dated 17.10.2012 is an order of the authority wherein it was noted that; "And whereas without obtaining E.C.C. from M.O.E.F., New Delhi, you have established and started Resin Plant." The evidence on record shows that there was no actual production of resin to lead to any conclusion that without any EC certificate, unit started and the production was done, which affected the environment and polluted air, water or soil or that the hazardous substance, alleged to have been prepared by its physio-chemical property, caused to harm the environment. While the inspection report dated 7.11.2012 noted 'no discharge from process Resin Plant Vessel washing taken into ETP'. The EC certificate was granted by the Central Government after public hearing. Unit is in progress. There is no allegations of any environment pollution. Against the column of 'Disposal Mode of Industrial / Domestic' noted as 'Zero Discharge' in the report dated 07.11.2012. Though report Page 34 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined notes production start date as 11.12.2011, in fact as per the evidence on record actual production had not started. The GPCB noted the industry as 'Zero Discharge' category. 9.3 In view of the same the case can be considered for ex- post facto approval since approval has been granted by way of EC certificate by the authority concern. 9.4 Report dated 22.08.2012 had directed the company for installing waste water treatment plant and direction was given to follow the procedure for procurement of NOC/EC/CCA which is to be followed under the Environment (Protection) Act and was also instructed to specify the place for public hearing in connection with EC application and after receiving NOC, production to be started, which is followed. 9.5 Since no actual production has taken place, this Court is of the opinion that when the EC approval is granted and when actual breach is not proved with any effect on environment, Page 35 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024 NEUTRAL CITATION R/CR.RA/41/2020 JUDGMENT DATED: 08/07/2024 undefined the conviction and sentence is required to be quashed and set aside.
9.6 In view of the same, punishment and order of sentence along with fine is quashed and set aside. Hence, the order dated 13.12.2019 passed by the learned Additional Sessions Judge, Morbi in Criminal Appeal no.18 of 2014 as well as the order dated 12.7.2014 passed by the learned Additional Chief Judicial Magistrate, Morbi in Criminal Case no.33 of 2013 are quashed and set aside.
9.7 Thereby, present petition is partly allowed and disposed of accordingly.
(GITA GOPI,J) DRASHTI K. SHUKLA Page 36 of 36 Downloaded on : Fri Aug 02 21:17:09 IST 2024