ASN 1 Cri.WP-833.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.833 OF 2011 The State of Maharashtra. ..Appellant. Vs. Navlakh Umbre Paryavaran Parisar Vikas Sangh and ors. ..Respondents. Mr.R.M.Kadam, Advocate General along with P.A.Pol, Pubic Prosecutor and N.P.Deshpande, A.G.P. for Petitioner State. Mr. Sultan Singh along with Hari Pillai and Himmat Singh i/by Taraq Sayed and S.Shikh for Respondent No.1. Mrs.Sharmila Deshmukh for Respondent Nos. 2 to 6 and 8 to 12. Mr. B.A. D’lima for Petitioner in Criminal W. P. No.1012 of 2011 and 1043 of 2011 on notice. CORAM : MOHIT S. SHAH, C. J. AND SMT. ROSHAN DALVI, J. DATE : 18 October 2011 PC: In this writ petition under Article 226 and 227 of the Constitution, the State of Maharashtra has challenged the order dated 17 January 2011 passed by the learned Judicial Magistrate First Class, Vadgaon, Maval below Exhibit-1 in Regular Criminal Case No.18 of 2011 filed by respondent No.1 Navlakh Umbre Paryavaran Parisar Vikas ASN 2 Cri.WP-833.sxw Sangh. In so far as respondent Nos. 2 to 12 are concerned, respondent No.2 is the Chairman of State Expert Appraisal Committee, respondent Nos. 3 to 9 are the members of the said Appraisal Committee, respondent No.10 is the Chairman of the State Environment Impact Assessment Authority and respondent Nos. 11 and 12 are the members of the said Assessment Authority. Respondent Nos. 2 to 12 are arrayed as accused Nos. 8 to 18 in the same criminal case. 2 In the complaint filed by respondent No.1 herein on 13 January 2011, the case of the complainant is that respondent Nos. 8 to 15 in their capacity as Chairman and the Members of the said Appraisal Committee (hereinafter referred to as “Appraisal “Committee”) and accused Nos. 16 to 18 as Chairman, Secretary and Member (hereinafter referred to as the “Assessment Authority”) without having requisite jurisdiction to do so have granted environmental clearance for the power project of M/s. Hindustan Electricity Generation Company Pvt. Limited (Accused No.1) in collusion with Managing Director, Director and employees of the said company. 3 The Government of India, Ministry of Environment and Forest issued Notification dated 14 September 2006 imposing restrictions and prohibition on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impacts as indicated in the Schedule to the ASN 3 Cri.WP-833.sxw notification, unless prior environmental clearance has been obtained from the Central Government or the State Government. As per item 1(d) of the said Schedule Thermal Power Plants below 500 MW are graded as Category B projects for which environmental clearance is to be secured from the State authorities and those above 500 MW are graded as Category A projects required to secure environmental clearance from the Central Government. 4 Respondent No.1 company applied to the State Government for environmental clearance on 30 September 2009 for Thermal Power Project for general capacity of 355 MW. In the said application, company mentioned size of the project 355+10% MW Combined Cycle Power Project -Phase I 355+10%MW, Phase-II “Future to be decided”, Phase-III “Future to be decided”. Thereafter, on 13 January 2010, the company submitted a proposal for expansion of project indicating that Phase I of the company project was for generation capacity of 355 MW+ 10% MW at Village Talegaon, District Pune. In the subsequent phase the company would expand generation capacity upto 2500 MW. 5 Respondent No.1 contended in the complaint that Appraisal Committee and the Assessment Authority of the State Government appointed under Notification dated 21 April 2008 did not have jurisdiction to consider the application of the company for Thermal Power Project of 355 MW extended to 2500 MW in view of the Government of India Circular dated 22 March 2010 directing that in case environmental clearance for the earlier proposal is yet to be accorded, ASN 4 Cri.WP-833.sxw the project proposal shall apply afresh and submit a comprehensive proposal for the earlier project by clubbing all the phases so that the environmental issues could be addressed holistically. The complainant contended that in view of the above circular the Appraisal Committee and the Assessment Authority appointed by the State Government under Notification 21 April, 2008 could not have proceeded with consideration of the application of the company for environmental clearance for the power project in question. The complainant further contended that while making recommendation on 16 April 2010 the Appraisal Committee did not have jurisdiction to entertain the said application and therefore, the Chairman and the Members of the Appraisal Committee, committed offence punishable under Section 17(1) and Section 15 read with Section 17 of the Environment Protection Act 1986. 6 The complaint had been filed not only against the Managing Director and the Officers of the company but also against the Chairman and the members of the Appraisal and Assessment Authorities. We need not refer to the other averments made in the complaint. 7 By order dated 17 January 2011, the learned Magistrate issued process to accused Nos. 1 to 7 and thereafter by order dated 5 February 2022 the learned J.M.F.C. issued process to accused Nos. 8 to 18 i. e. respondent No.2 to 12 herein being Chairman and Members of the Appraisal Committee and the Assessment Authority. The learned Magistrate gave the following reasons while issuing the process against the Chairman and the Members of the above Committee and the ASN 5 Cri.WP-833.sxw Authority. “Today the case was taken on board for argument by complainant’s counsel by filing application. Heard Advocate K. Himmatsingh and Summer Vijaysingh at length, counsel for the complainant. They have drawn the attention of the court towards notification dated 22.3.2010 of the Central Government by virtue of which SEAC or the SEI AA did not possess any jurisdiction to entertain the application of company for grant of environmental clearance. By way of said circular, the Central Government has categorically directed that in cases of proposals of expansions of projects wherein the Environmental Clearance for the earlier proposal is yet to be accorded the project proponent is mandatorily required to apply afresh and submit a comprehensive proposal for the entire project by clubbing all the phases before the Central Government so that the environmental issues could be addressed holistically. In fact the company filed the final EIA report as stipulated in the notification only on 15/4/2010, by which date the Circular dated 22.3.2010 had taken effect. As such, without possessing any jurisdiction whatsoever, the SEAC on the very next day i.e. On 16.4 2010 chose to recommend the case of the company to SEIA i.e. The regulatory authority, for grant of environmental clearance. Accused No.8 to18 have been nominated for a specific purpose of carefully scrutinizing all cases concerning grant or otherwise cases of environmental clearance and they have intentionally issued environmental clearance for proposed thermal plant of 2500 mega watts and violated the order and direction of the Central Government i. e. Circular dated 22/3/2010 and thereby committed violation of Section 3 read with 5, read with Section 15 of the Environmental (Protection ) Act 1985. On perusing the record of the case, it reveals the same. Hence, as per ASN 6 Cri.WP-833.sxw Section 24, of the Environment (Protection) Act 1986, Section 197 of Cr.P.C. Does not apply to these public servants while issuing process against them as they are deemed guilty vide Section 17 of the Environmental Protection Act 1986. Hence, in this regard I issue process against accused No. 8 to 18, public servants under Section 15 and 17 of the Environment (Protection) Act 1986.” 8 The learned Advocate General appearing for the petitioner- State of Maharashtra has submitted that the Appraisal Committee and the Assessment Authority have been constituted in exercise of the powers conferred by Notification dated 14 September 2006 issued in exercise of the powers under Rule 5(3) of the Environment Protection Rules 1986. Clause 3 of the Notification provides for State Level Environment Impact Assessment Authority and the Rules provide that State Expert Appraisal Committee is constituted under Clause 4(ii) of the said Notification. It is submitted that the aforesaid Appraisal Committee and the Assessment Authority are appointed for the purpose of recommending the environmental clearance and grant of environmental clearance. The Chairman and the Members of the said Committee do not carry on any industry or any project for which any action under Section 14 of the Act may lie. Section 14 of the Act provides for prosecution. Section 15 of the Act defines the offences punishable and Section 16 provides that when the offence is committed by a company, every 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 company, shall be deemed to be guilty of the offence. Similarly, Section 17 provides that where offence under the Act ASN 7 Cri.WP-833.sxw has been committed by a Department of Government, the Head of the Department shall be deemed to be guilty of the offence unless the concerned Head of the Department proves that the offence was committed without his knowledge and and he exercised all due diligence to prevent the commission of such offence. 9 For a clearer view of the provisions under Sections 16 and 17 and their applicability, we set out below the relevant parts of those sections: 16 Offences by companies :- 17 Offences by Government Departments- (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: (1)Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: ASN 8 Cri.WP-833.sxw 10 It is submitted that the Head of the Department referred to in Section 17 refers to only those officers who are Heads of the Departments which carry on any industry or set up projects in respect of which the provisions of the Environment Act and the rules and Notification thereunder are violated. The Chairman and the Members of the Appraisal Committee and the Assessment Authority are not covered by the provisions of Section 17 of the Act. 11 The learned Advocate General further submits that in view of the Government Circulars issued by the Central Government, the State Government sought clarification from the Central Government whether the application made by the company in the present case could be considered by the State Level Appraisal Committee and the Assessment Authority since the company made its initial application for generation capacity of less than 500 MW, but later proposed an expansion of the project upto 2500 MW. However, in the meantime, company itself withdrew its proposal for expansion of the capacity of the power plant from 355 upto 2500 MW and the Government of India informed the State Government that the proposal of the company for 355 being D category project need to be approved by the State Level Appraisal Committee and the State Assessment Authority. 12 It is, therefore, submitted that when the Central Government itself has closed the file regarding the expansion proposal of the ASN 9 Cri.WP-833.sxw company, there could be no impediment to State Level Committee and the Assessment Authority considering the proposal of the committee for environmental clearance of the power plant with capacity of 355 MW. In view of the aforesaid development as indicated in the letter dated 3 August 2011 of the Central Government, there could be no question of complaint lodged by respondent No.1 continuing to be entertained by the learned J.M.F.C. 13 As regards the question of maintainability of the petition, learned Advocate General has relied upon the decision of this Court in the case of Union of India through M.B.Suresh and ors. Vs. State of Maharashtra and anr. 2003 ALL (Cri) MR 1016 in support of the contention that in appropriate case Government can also defend its officers in the prosecution launched against its honest officers when no sanction was granted under Section 197 of the Cr.P.C. 14 The learned counsel for respondent No.1 has vehemently opposed the petition and submitted that since the Chairman and the Members of the Appraisal Committee and the Assessment Authority have continued to deal with the application of the company for environmental clearance for power project of 355 MW expandable upto 2500 MW, the learned Magistrate had committed no error in issuing process on the complaint filed by respondent No.1. The learned counsel also submitted that company and its officers and employees had taken various steps towards the implementation of the project even before getting any environmental clearance and in spite of the reference made by ASN 10 Cri.WP-833.sxw respondent No.1, the Chairman of the Appraisal Committee and the Assessment Authority did not take any steps to prevent the company from cutting down trees and taking other steps. 15 As regards the above submission made by the learned counsel for respondent No.1, we find that respondent No.1 has filed PIL No.115 of 2010 and those issues will be considered in that petition. 16 At present we have considered only the limited question whether the complaint against the Chairman and the Members of the State Level Appraisal Committee and the Assessment Authority is maintainable and whether they would be liable for punishment under Section 16 of the Environment (Protection) Act, 1986. 17 Having heard the learned counsel for the parties we find that Section 17 would apply in case where department of the Government is running any industry or setting up project in respect of which the provisions of the Environment (Protection) Act, 1986 and Rules thereunder are violated. Section 17 would not apply to the Chairman and Members of the Appraisal Committee and the Assessment Authority which committee and authority are appointed in exercise of the powers under the Act by the Notification of 2006. 18 Moreover, having regard to the fact that the Central Government itself has closed the file regarding the proposal and in view ASN 11 Cri.WP-833.sxw of the withdrawal of the proposal of the company for expansion of the generation capacity of any plant from 355 to 2500 MW., we are of the view that this is a fit case for quashing process issued by the learned J.M.F.C. Vadgaon. against the accused Nos. 8 to 18 in the aforesaid criminal case. Writ Petition is accordingly allowed. 19. The process issued by the learned J.M.F.C., Vadgaon, against accused nos.8 to 18 in Regular Criminal Case no.18 of 2011 is hereby quashed. Rule is made absolute. 20. We do not express any opinion about the maintainability and the merits of the complaint filed by respondent No.1 against the company and its officers and employees which are accused Nos. 1 to 7 in the said criminal case. 21. It is clarified that pendency of the PIL or this Writ Petition does not preclude the Competent Authority from considering the application for environmental clearance for the power project of 355 MW to 2500 MW. This clarification is made without prejudice to the rights and contentions of the parties in PIL and the Writ Petition. CHIEF JUSTICE ( SMT. ROSHAN DALVI, J. )