Bombay High Court
Vinod P Mahajan And Ors vs The State Of Maharashtra And Anr on 10 October, 2017
Bench: R.M. Savant
Res. Jt in APL-697-17.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.697 OF 2017
1) Mr. Vinod P. Mahajan, of Mumbai ]
Indian Inhabitant in his capacity as Chief ]
Promoter of Shree Swami Samartha ]
Prasanna Co-operative Housing Society ]
(proposed) having office at 11-A, ]
Suyash, Near Amar Hind Mandal ]
Gokhale Road (North), Dadar, Mumbai ]
400 028 ]
2) Vikas Kamlakar Walawalkar ]
Partner of Samartha Development ]
Corporation, a Partnership Firm ]
registered under the provisions of the ]
Indian Partnership Ac, 1932 having his ]
Registered address at 11-A, Suyash, ]
Near Amar Hind Mandal, ]
Gokhale Road (N), Dadar (West), ]
Mumbai 400 028 ]
3) Satish Prabhakar Shetye, an adult male ]
of Mumbai, Indian Inhabitant residing at ]
306/B, Jupiter Co-operative Housing ]
Society, Apna Ghar, Swami Samartha ]
Nagar, Oshiwara, Andheri (West), ]
Mumbai 500 058 ]..Applicants
Versus
1) State of Maharashtra, ]
Through Secretary, Home Department, ]
Mantralaya, Mumbai 400 032 ]
2) Nandkumar Balsaraf, Circle Officer ]
through the Tahsildar, Andheri, having ]
his office at Dadabhai Nowroji Road, ]
Andheri (West), Mumbai 400 058 ]..Respondents
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Res. Jt in APL-697-17.doc.
Mr. A. H. Ponda a/w Mr. Amrut Joshi, Mr. Shailesh Mahimtura, Mr.
Ooril Panchal, Mr. Ashish Raghuvanshi i/by Mahimtura and Company
for the Applicants.
Mr. K. V. Saste, Addl. P. P. for the for the Respondent - State.
CORAM : R. M. SAVANT &
SANDEEP K. SHINDE, JJ.
RESERVED FOR JUDGMENT :- 19th SEPTEMBER, 2017
PRONOUNCEMENT OF JUDGMENT :- 10th OCTOBER 2017
JUDGMENT (Per R. M. SAVANT, J)
1 The above Criminal Application has been filed by the
Applicants for quashing the charge-sheet dated 11 th December, 2012, the
FIR No.3 of 2012 registered with the Oshiwara Police Station for offences
punishable under Section 15(1) and (2) of the Environment (Protection)
Act, 1986 (for short "the EPA 1986"). The Applicants also seek quashing
and setting aside of the order dated 11 th December, 2012 passed by the
Learned Magistrate taking cognizance of the offence.
2 The Applicant No.1 herein is the Chief Promoter of Shree
Swami Samartha Prasanna Co-operative Housing Society who granted
development rights in or around 1975 to one Samartha Development
Corporation which is a partnership firm registered under the provisions
of the Indian Partnership Act, 1932. The Applicant No.1 is the original
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accused in the FIR No.3 of 2012 dated 7th January 2012 registered with
the Oshiwara Police Station, Andheri West, Mumbai. The Applicant No.1
has been arraigned as accused No.6 in CC No.2263/PW/2012 pending on
the file of the Learned Metropolitan Magistrate, 65th Court, Andheri,
Mumbai. The Applicant No.2 is a partner of Samartha Development
Corporation which has been entrusted with the development of the land
which is the subject matter of the FIR. The Applicant No.3 is the manager
working with the said Samartha Development Corporation. The Applicant
No.3 has been shown as accused No.4 in the said CC No.2263/PW/2012.
It seems that the Applicant Nos.2 and 3 were not originally named in the
FIR but were subsequently named in the charge-sheet.
3 The subject FIR has been registered by the Circle Officer,
Andheri under Section 15(1) and (2) of the Environment (Protection)
Act, 1986. The subject land is Plot No.124 which forms part of a scheme
sanctioned by the Municipal Corporation vide order No.CE/649/BS 1/
Lokhandwalla. The said laid bears CTS No.1/48/1A/2 of village
Oshiwara, Taluka Andheri and admeasures 7747.1 sq. mtrs. As indicated
above, it is the Samartha Development Corporation which is entitled to
develop the said plot in respect of which it has obtained approvals for
construction of buildings on the said plot which buildings comprise of
three wings.
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4 The plans for the said buildings have been sanctioned by the
Municipal Corporation for Greater Mumbai (for short "MCGM") on 3 rd
July, 2012 and commencement certificate has been issued on 6 th April,
2013. The MCGM has also issued NOC dated 19 th July, 2012 from the
Water Works Department. The Tree Authority has issued NOC on 5 th
September, 2012 and provisional NOC has been issued by the MTNL on
26th July, 2012. Since the plot falls in the CRZ area, the Maharashtra
Coastal Zone Management Authority (for short "MCZMA") has vide letter
dated 11th November, 2011 recommended the proposed residential
construction on the said plot as per the decision taken at the 71 st meeting
of the MCZMA.
5 It seems that some persons made a complaint to the
Tahsildar alleging that mangroves were being destroyed on the said plot
of land. Pursuant to the said complaint it seems that a site visit was
carried out by the Circle Officer, Nandkumar Balsaraf and the other
officers of the Revenue Department on 29 th December, 2011. It seems
that thereafter a letter came to be addressed by the office of the Tahsildar,
Andheri on 5th January, 2012 to the Oshiwara Police Station. The Circle
Officer thereafter visited the said Police Station on 6th January, 2012 and
ultimately FIR came to be registered on 7 th January, 2012. The gist of the
allegations in the FIR is to the following effect :-
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"(a) That an offence has been committed under Section
15(1) and (2) of the Environment (Protection) Act,
1986 (for short "the EP Act, 1986") by the said Shree
Swami Samartha Prasanna Co-operative Housing
Society (proposed) which is of the Samartha
Development Corporation.
(b) That two or three mangrove trees exist inside a nala
which flows at some distance away from the northern
boundary of the plot of land, the Applicants have
allegedly dumped on the said plot earth/debris at a
distance of 15 or 20 from the roots of 2 or 3 mangrove
trees which are growing inside the nala.
(c) That the Applicants have dumped the said debris at
the said location without seeking prior permission
from the concerned department.
(d) That it is the apprehension of the complainant that on
account of the said unauthorized filling at the said
location, harm may be caused in future to the 2 to 3
mangrove trees which are located inside the nala.
(e) That by dumping the said debris at the said location,
the Applicants have violated the order passed by this
Court for protection of the mangrove trees and that it
cannot be ruled out that in future damage will be
caused to the environment."
6 It seems that after the said complaint came to be lodged, the
Applicants carried out enquiries, upon they came to know that the
complaint was made by an organization called "Save Open Space".
7 Against the said FIR, the Applicants had filed Criminal Writ
Petition No.1130 of 2012 in this Court. The said Writ Petition had come
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up for admission before the Division Bench of this Court. The Division
Bench on 22nd August, 2012 whilst disposing of the said Writ Petition
observed that there is no manner of doubt that the Investigating Officer
would submit appropriate report to the concerned Court. It was further
observed by the Division Bench that on the said location if damage has
been done to any mangroves, the Investigating Officer will record the said
fact in the final report to be submitted to the concerned Court. The
Division Bench further observed that the Investigating Officer shall do the
needful in the matter in right earnest. The Division Bench accordingly
disposed of the said Writ Petition. Hence, the said Writ Petition was filed
before the final report was filed and before cognizance being taken.
8 The Investigating Officer thereafter filed the report under
Section 173 of the Cr.P.C. in the Court of the Learned Metropolitan
Magistrate, 65th Court, Andheri, Mumbai on 11th December, 2012. The
said report was against the Applicants and the other accused. In the
charge-sheet the Applicant Nos.2 and 3 have also been made accused.
The Learned Metropolitan Magistrate on the same day has taken
cognizance of the offence by passing the following order :-
"Charge-sheet is filed today. Cognizance of offence is taken.
Issue summons to the accused."
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As indicated above, it is the charge-sheet dated 11 th December, 2012 as
also the order passed on the said day i.e. 11 th December, 2012 taking
cognizance of the offence which is taken exception to by way of the above
Application.
9 Heard the Learned Counsel for the Applicants and the
Learned Additional PP for the State.
10 The principal contention of the Learned Counsel for the
Applicants in assailing the charge-sheet and the order dated 11 th
December, 2012 is that the procedure and or the due process of law for
registering an offence under Section 19 of the EPA 1986 was not
followed. It was the contention of the Learned Counsel that Section 19 of
the EPA requires the Central Government or its officer to file a complaint
or a private citizen to give an advance notice of 60 days to the Central
Government or its officer before filing a complaint. It was further the
submission of the Learned Counsel that a combined reading of Section 19
of the EPA 1986 and Section 2(d) of the Cr.P.C. indicates that for
cognizance of an offence under Section 19 a complaint has to be filed
before the Magistrate and such complaint does not include a police report
under Section 173 of the Cr.P.C. It was the submission of the Learned
Counsel that in the present case neither a proper authority has instituted
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the complaint nor has the procedure prescribed has been followed for
taking cognizance of the said complaint.
In support of the said submissions, the Learned Counsel
relied upon the following judgments of the Division Benches of this
Court :-
1] 2016 (6) ABR 533 in the matter of Dr. Mahesh Vijay
Bedekar Vs. State of Maharashtra and others.
nd
2] Unreported judgment dated 22 December, 2016 in
PIL No.218 of 2013 in the matter of Navi Mumbai
Environment Preservation Society and another Vs.
Ministry of Environment.
th
3] Unreported judgment dated 26
August, 2014 in
Criminal Application (Main) No.116 of 2014 in the
matter of Mr. Subhash Shirodkar Vs. State of Goa.
4] 2014 SCC OnLine Bom 787 in the matter of State of
Maharashtra Vs. Ajay Jagdish Pande and 3 ors.
5] The Learned Counsel also relied upon the judgment of
the Apex Court reported in (1986) 4 SCC 326 in the
matter of A. K. Roy and another Vs. State of Punjab
and others.
11 The Learned Counsel also sought to make submissions on
merits by contending that the area wherein three mangrove plants are
situated cannot come within the mangrove area as defined in the
notification dated 2011. The Learned Counsel would also submit that the
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factum of the MCZMA lifting the stay granted by it would indicate that no
offence has been committed by the Applicants in as much as no mangrove
has been destroyed by the Applicants in any area which can be described
as a mangrove area within the definition in the notification dated 2011.
12 The Learned Additional PP, Mr. K. V. Saste sought to justify
the registration of the FIR, filing of the charge-sheet and the cognizance
being taken by the Learned Magistrate, but the submissions made by the
Learned Additional PP were not with any deal of conviction faced with
the judgments of this Court on which reliance was placed by the Learned
Counsel for the Applicants.
13 In the context of the challenge raised in the above Petition, it
would be necessary to advert to Sections 15 and 19 of the EPA 1986. The
same are reproduced herein under for the sake of ready reference :-
"15. Penalty for contravention of the provisions of the
Act and the rules, orders and direction.- (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 or 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.
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(2) If the failure or contravention referred to in sub-
section (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."
"19. Cognizance of offences.- No Court shall take
cognizance of any offene under this Act except on a
complaint made by -
(a) the Central Government or any authority or officer
authorised in this behalf by that Government; or
(b) any person who has given notice of not less than
sixty days, in the manner prescribed, of the alleged offence
and of his intention to make a complaint, to the Central
Government or the authority or officer authorised as
aforesaid."
Hence under Section 15, it is provided that a person who fails to comply
with or contravenes any of the provisions of this Act, or the rules made or
orders or directions issued thereunder, may be punished by imprisonment
which may extend to five years or with a fine of one lakh rupees, or with
both. In case of continuation of the contravention for a period of one year
after the conviction term of imprisonment may extend to seven years.
14 In so far as Section 19 of the EPA 1986 is concerned, it
provides for the manner in which cognizance of an offence under Section
15 can be taken. The said provision being worded in the negative,
cognizance can only be taken of the offence under the EPA 1986 if the
complaint is made by the Central Government or any authority or officer
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authorised in this behalf by the Central Government or the complaint
made by any person who has given notice of not less than sixty days, in
the manner prescribed.
15 The issue of the action to be taken for contravention of the
Noise Pollution Rules framed under the EPA 1986 had come up for
consideration in Dr. Mahesh Vijay Bedekar's case (supra). The Division
Bench held that the contravention of the Noise Pollution Rules would
amount to an offence under Section 15 of the EPA 1986 and therefore
complaint in that regard would have to be made by persons authorized to
do so. The Division Bench in the said case referred to the notification
issued by the Central Government being S.O.394/E which shows that
under clause (a) of Section 19 of the EPA 1986. The power to set the
criminal law in motion has been conferred on the Chairman or the
Member Secretaries of the State Pollution Control Board as well as the
Regional Officers of the State Pollution Control Board. In the said
notification, even the Collector is authorized under clause (a) of Section
19 to set the criminal law in motion under clause (a) of Section 19. The
Division Bench in the context of the said notification and having regard
to Section 19 held that the Police Officers are not empowered to set the
criminal law in motion unless there is a compliance with clause (b) of
Section 19. The relevant paragraphs of the said judgment are paragraphs
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47, 67 and 68 which are reproduced herein under :-
"47. In view of the aforesaid notification issued by the
Government of India, the Chairman or the Member
Secretary or the Regional Officers of the Maharashtra
Pollution Control Board have been authorised in terms
of clause (a) of Section 19 to file complaints. If such
Officers file complaints, they are not required to give
notice of sixty days as provided in clause (b) of
Section 19. It is for this reason that in the said Civil
Application filed by the Intervenor, specific directions
have been sought against the Pollution Control Board
enjoining the nominated officers to set the criminal
law in motion under Section 19 as even the Police
Officers are not empowered to set the criminal law in
motion unless there is compliance with clause (b) of
Section 19. In the said Central Government
Notification, even the Collector is authorised under
clause (a) of Section 19 to set the criminal law in
motion."
"67. On plain reading of Section 19, if any person other
than Central Government or authority or officer
authorised in this behalf by that Government in
accordance with clause (a) thereof wants to set
criminal law in motion, that person has to give notice
of 60 days of the alleged offences and of his intention
to make a complaint as provided in clause (b) of
Section 19. Thereafter, if the authority under the Noise
Pollution Rules or any police officer wants to file a
complaint, he has to abide by clause (b) of Section 19.
Therefore, an offence cannot be registered at least for
a period of 60 days from the date of its commission. As
far as clause (a) is concerned, there is a notification
issued by the Central Government which is annexed to
CA(St.) No.1817 of 2016. As per the said notification,
the District Collectors have been appointed as
authority under clause (a) of Section 19. The
Chairpersons, member Secretaries and regional
officers of the State Pollution Control Board who have
been delegated powers under Section 24 of Air
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Pollution Act are also authorities under clause (a) of
Section 19."
"68. Therefore, we propose to direct the authority under
the Noise Pollution Rules to ensure that as soon as a
complaint is received or information is received from
the Police Officer or information is otherwise received
regarding any major violation of the Noise Pollution
Rules, immediate information thereof shall be
provided to the officers of the Maharashtra State
Pollution Control Board or the District Collector who
have been authorised under (a) of Section 19 to take
action. As soon as such intimation is received, either
the District Collector or officers of the Pollution
Control Board will have to take immediate steps to
make a complaint contemplated by Section 19 of the
Environment Protection Act inasmuch as if the
Collector or the authorised officers make a complaint,
it is not necessary for them to follow requirement of
giving 60 days notice under Section 19. Even the
police officers can set criminal law in motion after
taking recourse to clause (b) of Section 19."
16 The said issue had again come up before the Division Bench
of this Court sitting at Goa in Mr. Subhash Shirodkar's case (supra).
Paragraph 10 of the said judgment is material and is reproduced herein
under :-
"10. By order dated 11/11/1998, the Dean of Goa Medical
College and Ex-officio Additional Secretary has
sanctioned provision of cadavers from Anatomy
Department of Goa Medical College to Kamaxidevi
Homeopathic Medical College and Hospital, Shiroda,
for dissection and teaching purpose. The Goa State
Pollution Control Board (GSPCB, for short), under
Rule 8(4) of the Bio Medical Waste Rules, has
authorised the Medical Superintendent (occupier) to
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generate, store, treat and dispose of the bio-medical
waste at the premises of M/s. Kamaxidevi
Homeopathic Medical College and Hospital, Karai,
Shiroda, Ponda, Goa. As per clause 14 of the said
authorisation, the occupier should construct deep
burial pit of two metres depth and no shallow well
should be closed to the deep burial site. The occupier
should maintain all records of pit for deep burial.
From the above provisions of Rules 4, 5 and 6 of the
Bio-Medical Waste Rules, and the authorisation dated
01/03/2013 given by GSPCB, it is clear that it is the
"occupier" of the institution, who will be responsible
for the alleged offence under Section 5 of the Act read
with Rules 5 and 6 of the Bio-Medical Waste Rules.
None of the petitioners is the occupier and the
occupier is the Medical Superintendent of the said
Hospital. Considering the provision of Section 19 of
the Act, the complaint ought to have been lodged by
the Central Government or any authority or officer
authorised, in this behalf, by that Government or in
the manner as specified by clause (b) of Section 19.
However, the said provision has not been complied
with. The provision is mandatory. Hence, the learned
J.M.F.C., Ponda could not have taken cognizance of the
said offence. On this ground alone, the F.I.R. under
Section 5 of the Act read with Rules 5 and 6 of Bio-
Medical Waste Rules and the Charge Sheet filed for the
said offence are liable to be quashed and set aside."
Thereafter the said issue had come up before another Division Bench in
Ajay Jagdish Pande's case (supra). In the said case, a submission was
advanced on behalf of the accused by the Learned Counsel that the Police
could not have filed a charge-sheet in respect of an offence punishable
under Section 15 of the EPA 1986. It was further submitted that there
was no question of the Court taking cognizance of an offence punishable
under the EPA 1986 on the basis of the charge-sheet filed by the police in
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view of the provisions of Section 19 of the EPA 1986. The Division Bench
held that the Court would have no jurisdiction to take cognizance of the
offence punishable under Section 15 of the EPA 1986 on the basis of the
documents submitted to it by the Police. Paragraph 38 of the said
judgment is material and is reproduced herein under :-
"38. Clearly, the Court would have no jurisdiction to take
cognizance of the offence punishable under section 15
of the Environment Act, on the basis of the document
submitted to it by the police. Even if any action has
been taken by the Court pursuant to the filing of such
document, such action would be without jurisdiction,
void and ab initio. The cognizance taken in violation of
a specific provision would be no cognizance at all, and
would be non-est."
17 Thereafter the issue had once again come up before a
Division Bench of this Court in Navi Mumbai Environment Preservation
Society's case (supra). The question which arose before the Division
Bench was whether the registration of an FIR at the instance of a person
who is not authorised under clause (a) of Section 19 and the
investigation carried out on the basis of the FIR becomes illegal. The
Division Bench culled out the principles and issued the directions which
are contained in paragraph 15 of its judgment. The said paragraph 15 is
reproduced herein under for the sake of ready reference :-
"15 Hence, we issue further interim directions.
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(I) We direct the Committee headed by the Divisional
Commissioner, Konkan Division to co-ordinate the
work of filing of complaints by the authorised
officers under clause (a) of Section 19 of the said
Act of 1986. Proper procedure shall be laid down
by the said Committee to ensure that the
authorised officers promptly file complaints in
case of the violations attracting the penal
provisions under Section 15. The Committee will
have to ensure that the authorised officers
properly co-ordinate with the concerned Police
officers;
(II) We direct the Central Government to consider the
question of appointing Police officers of
appropriate rank as authorised officers under
clause (a) of Section 19 of the said Act of 1986 in
different areas with a view to make
implementation of the said Act of 1986 more
effective. Appropriate decision shall be taken by
the Central Government within a period of one
month from the date on which an authenticated
copy of this order is produced by the Petitioners in
the office of the Secretary in charge of the
Department of Environment of the Central
Government. The concerned Ministry shall act
upon an authenticated copy of this order;
(III) We clarify that registration of offences by
the Police under Sub-Section (1) of Section 15 of
the said Act of 1986 and the investigation carried
se illegal. The officers
out thereon is not per
authorised under clause (a) of Section 19 can
always file complaints in accordance with the said
Code by relying upon the material collected
during the investigation and material forming
part of the charge sheet prepared by the Police;
(emphasis supplied)
(IV) We direct the Committee appointed under the
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Chairmanship of the Division Commissioner to
ensure that the prosecutions which are lodged for
commission of offences punishable under Sub-
Section (1) of Section 15 are properly conducted;
(V) For considering the compliance by the Central
Government and for issuing further directions on
the basis of the decision taken by the Committee
headed by the Divisional Commissioner, the
Petition shall be listed on 27th January, 2017
before this Court (a Division Bench presided over
by A. S. Oka, J. in terms of the directions of the
Hon'ble the Chief Justice);
(VI) Issue of compliances made by the Committee,
CIDCO and other authorities shall be considered
on that date."
18 A reading of the aforesaid judgments (supra) therefore
reveals a common thread running in them. In so far as cognizance of an
offence under the EPA 1986 is concerned, the weight of the aforesaid
judgments is overwhelmingly leaning towards holding that to take
cognizance of an offence under Section 15 of the EPA 1986 the complaint
has to be made by the Central Government or any authority or officer
authorized by the government, but does not include a police report under
Section 173 of the CPC. In so far as the alternative contained in Section
19 is concerned, no doubt, a private individual can file a complaint but
the same has to be filed by following the mandate of clause (b) of Section
19 of the EPA 1986 i.e. by giving a notice in a prescribed manner of the
alleged offence to the Central Government or its concerned officer of
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State that he intends to make a complaint on the said basis and
individual would have to state that if within sixty days does not get
response then would proceed further. It is well settled by the judgments
of the Apex Court that if a statute is requires a thing to be done, it has to
be done in the said manner only and not in any other manner. It is in the
aforesaid context that the relief sought in the instant application would
have to be considered.
19 In so far as the instant case is concerned, there is no dispute
about the fact that the FIR has been registered by the Circle Officer,
Andheri and there is nothing on record to indicate that the said Circle
Officer has been authorized by the Central Government to file an FIR in
respect of an offence under the EPA 1986. It is pursuant to the
registration of an FIR that investigation was carried out by the local
police and a final report under Section 173 came to be filed by the local
police. It is pursuant to the final report filed that cognizance under
Section 19 of the EPA 1986 has been taken by the concerned learned
Metropolitan Magistrate. Hence, in the instant case, the cognizance of the
offence has been taken by the learned Magistrate on the basis of a police
report which is impermissible as per the law enunciated by the Division
Benches of this Court. Hence, the consequences of the cognizance being
taken on the basis of a police report which is not the modality prescribed
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under Section 19 would have to be followed.
20 A useful reference could also be made to the judgment of the
Apex Court in A. K. Roy's case (supra). In the said case, Section 20 of the
Prevention of Food Adulteration Act, 1954 which provides for cognizance
and trial of offences, was in contention. The said provision reads thus :-
"20. Cognizance and trial of offences. - (1) No prosecution
for an offence under this Act, not being an offence under
Section 14 or Section 14-A, shall be instituted except by, or
with the written consent of, the Central Government or the
State Government or a person authorised in this behalf, by
general or special order, by the Central Government or the
State Government."
Paragraphs 9 and 10 of the said judgment are relevant and are
reproduced herein under :-
"9. It is common ground that the prosecution in the
instant case has not been launched either by or with the
written consent of the Central Government or the State
Government. It therefore becomes necessary to ascertain
whether the Food Inspector, Faridkot was duly authorized
to launch a prosecution. The Food Inspector had been
conferred powers of the State Government under Section
20(1) of the Act viz. to initiate prosecutions for an offence
under the Act, by the Food (Health) Authority i.e. the
Director of Health Services. A mere perusal of the
impugned notification dated September 7, 1972 makes it
manifest that it was the Director of Health Services and not
the State Government who had authorised the Food
Inspector to launch prosecutions for an offence under the
Act. It is therefore clear that the Food Inspector is not a
person who has been authorised by any general or special
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order issued by the Central Government or the State
Government. There would be no problem if the State
Government were to issue a notification under Section
20(1) of the Act conferring authority on the Food Inspector,
Faridkot under Section 20(1) to launch prosecutions for an
offence under the Act as is the practice in the other States.
10. A careful analysis of the language of Section 20(1) of
the Act clearly shows that it inhibits institution of
prosecutions for an offence under the Act except on
fulfillment of one or the other of two conditions. Either the
prosecutions must be institute by the Central Government
or the State Government or a person authorised in that
behalf by the Central Government or the State
Government, or the prosecutions should be instituted with
the written consent of any of the four specified categories
of authorities or persons. If either of these two conditions is
satisfied, there would be sufficient authority for the
institution of such a prosecution for an offence under the
Act. The provision contained in Section 20(1) of the Act
does not contemplate the institution of a prosecution by
any person other than those designated. The terms of
Section 20(1) do not envisage further delegation of powers
by the person authorised, except that such prosecution may
be instituted with the written consent of the Central
Government or the State Government or the person
authorised. The use of the negative words in Section 20(1)
"No prosecution for an offence under this Act.....shall be
instituted except by or with the written consent of" plainly
make the requirements of the section imperative. That
conclusion of ours must necessarily follow from the well
known rule of construction of inference to be drawn from
the negative language used in a statute stated by Craies on
Statute Law, 6th edn., p. 263 in his own terse language :
If the requirements of a statute which prescribes
the manner in which something is to be done are
expressed in negative language, that is to say, if
the statute enacts that it shall be done in such a
manner and in no other manner, it has been laid
down that those requirements are in all cases
absolute, and that neglect to attend to them will
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invalidate the whole proceeding.
(emphasis supplied)
Where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all. Other
modes of performance are necessarily forbidden. The
intention of the legislature in enacting Section 20(1) was to
confer a power on the authorities specified therein which
power had to be exercised in the manner provided and not
otherwise."
The Apex Court in the facts of the said case where the prosecution was
launched not with the written consent of the Central Government or the
State Government, but by the Food Inspector, Faridkot held that the Food
Inspector, Faridkot not being authorized to launch prosecution for an
offence under the said Act found fault with the launching of the said
prosecution. The Apex Court held that the provision contained in Section
20(1) of the said Act does not contemplate the institution of a
prosecution by any person other than those designated. The Apex Court
further held that the terms of Section 20(1) do not envisage further
delegation of powers by the person authorised, except that such
prosecution must be instituted with the written consent of the Central
Government or the State Government or the person authorised. The Apex
Court accordingly in the said case set aside the judgment and order
passed by the High Court as well as the Special Divisional Judicial
Magistrate. The said judgment in A. K. Roy's case (supra) therefore
supports the case of the Applicants that in the instant case the cognizance
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could have only been taken if the mandate of Section 19 was fulfilled.
21 The Applicants have assailed the registration of the FIR and
filing of the charge-sheet inter-alia on the ground, that on the basis of the
GPS readings and spot inspection it was recorded that there are no
mangroves on the said plot, the permission granted by the MCZMA to
carry out construction on the said plot and that there is no mangrove
area of more than 1000 sq.mtrs. within 50 mtrs. distance from the
proposed building on the said plot. That the two or three mangrove trees
on the said plot as stated in the FIR do not qualify as a "mangrove area"
because an area of 1000 sq.mtrs. must be covered by mangroves for there
to be a mangrove area. That the said plot falls within CRZ-II and not
CRZ-I and therefore there is no question of any mangroves growing on
the said plot which is acknowledged by the MCGM and MCZMA. That the
stop work notice dated 29th June 2013 being withdrawn by the MCZMA
in its 114 meeting dated 2nd November 2016 and that the restrictions
imposed vide order dated 6th October, 2005 passed by this Court in PIL
No.87 of 2006 do not apply to the plot in question as the said order
applies to mangrove areas which are notified and which order provides
for a mechanism for the purposes of identification and notification of the
mangrove areas. It is on the aforesaid grounds that the Applicants have
questioned the registering of the FIR and filing of the charge-sheet by the
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police. Since we have come to a conclusion that the cognizance taken by
the learned Magistrate is not in terms of Section 19 of the EPA 1986 and
therefore the order dated 11th December, 2012 taking cognizance would
have to be set aside. It is not necessary for us to go into the grounds
afore-stated questioning the registering of the FIR and the charge-sheet.
It would be for the Applicants to urge the said grounds in appropriate
proceedings, if the occasion arises in future.
22 Though we have come to a conclusion that the order dated
11th December, 2012 passed by the learned Magistrate of taking
cognizance of the offence under Section 15 of the EPA 1986 would have
to be set aside, it would not be out of place to revisit the direction of the
Division Bench as contained in the order dated 22 nd December, 2016
(clause III of the order passed by the Division Bench in PIL No.218 of
2013). Since by the said direction, the Division Bench has held that the
investigation carried thereon is not per-se illegal that the officer under
clause (a) of Section 19 can always file complaints in accordance with the
said Code by relying upon the material collected during the investigation
and material forming part of the charge-sheet prepared by the police. It is
therefore not necessary to quash and set aside the FIR, however, we are
required to modulate the relief which is to be granted in the above
application accordingly. Hence, the following order :-
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I) The order dated 11th December, 2012 passed by the
learned Magistrate taking cognizance for the reasons
stated hereinabove is set aside. The filing of the
charge-sheet by the police dated 11th December 2012
is also set aside.
II) It is however clarified that the investigation carried
out by the police pursuant to the FIR as well as the
material collected by the police is kept intact and it
would be open for the officers authorized under clause
(a) of Section 19 to file a complaint by following the
directions as contained in clause III of paragraph 15 of
the order dated 22nd December, 2016 passed in PIL
No.218 of 2013. The same to be done within twelve
weeks from date.
III) If the procedure as contemplated by Section 19 of the
EPA 1986 and as interpreted by the various judgments
of this Court and especially clause III of paragraph 15
of the judgment and order dated 22nd December, 2016
in PIL No.218 of 2013 is followed, the concerned
learned Magistrate would passed appropriate orders
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thereon as regards cognizance.
IV) Needless to state that the contentions of the Applicants
on merits are kept open for being urged at the
appropriate time in appropriate proceedings. The
Criminal Application is allowed to the aforesaid
extent.
V) Rule is accordingly made absolute.
[SANDEEP K. SHINDE, J] [R. M. SAVANT, J]
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