The Haryana State Environmental ... vs M/S Maruti Suzuki India Ltd. & Anr.
2014 Latest Caselaw 4687 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 22nd September, 2014

+                               LPA No.547/2014

       THE HARYANA STATE ENVIRONMENTAL IMPACT
       ASSESSMENT AUTHORITY & ANR.               ....Appellants
                   Through: Ms. Anubha Agarwal, Adv.

                                   Versus

    M/S MARUTI SUZUKI INDIA LTD. & ANR.       ..... Respondents

Through: Mr. Arvind Nigam, Sr. Adv. with Ms. Ruchi Agnihotri, Mr. Nikhil Rohatgi & Ms. Shanta Chirravuri, Advs.

CORAM:-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. This intra-court appeal impugns the order dated 26th May, 2014 of the

learned Single Judge of this Court in W.P.(C) No.2066/2014 filed by the

respondent no.1 / writ petitioner Maruti Suzuki India Ltd.

2. The respondent no.1 / writ petitioner, being on caveat, also appeared and

considering the nature of the controversy, need was not felt to issue notice to

the respondent no.2, the Ministry of Environment & Forests, Government of

India and we finally heard the counsel for the appellants and the senior counsel

for the respondent no.1 at the stage of admission.

3. The respondent no.1 filed the writ petition from which this appeal arises,

pleading:

(a) that the respondent no.1 was carrying on activity of manufacturing

of automobiles at its factory at Gurgaon & Manesar and has a

Research and Development Facility and test track at Rohtak,

Haryana, within the jurisdiction of the appellant no.1 the Haryana

State Environmental Impact Assessment Authority;

(b) that the respondent no.1 had made numerous representations to the

respondent no.2, seeking clarification on the applicability of the

Environment Impact Assessment (EIA) Notification dated 14 th

September, 2006 issued by the respondent no.2, but to no avail;

(c) that the need for seeking such clarification arose because the

appellant no.1 had been taking a stand that prior environmental

clearance was necessary even for projects and activities not

enumerated in the Schedule to the EIA Notification dated 14 th

September, 2006, relying on a circular titled "Environment

Clearance to Special Economic Zone (SEZ) Projects - Reg." dated

21st October, 2009 providing that all activities and projects,

whether or not listed or specified in the Schedule to the EIA

Notification dated 14th September, 2006, if having built up area in

excess of 20000 sq. mtrs. would require prior environmental

clearance;

(d) that the respondent no.1 however, being of the opinion that since

its activities were not mentioned in the Schedule to the EIA

Notification dated 14th September, 2006, no prior environmental

clearance was required, had not taken the said clearance; and,

(e) that the appellant no.1 was however taking adverse view of the

respondent no.1 having not taken the prior environment clearance.

Accordingly, in the writ petition, the reliefs of, i) direction to the

respondent no.2 to act on the representations of the respondent no.1, and ii)

inter alia direction to the appellant no.1 not to proceed against the respondent

no.1 for having not obtained the prior environmental clearance, were claimed.

4. Notice of the writ petition was issued and a reply was filed by the

appellant no.1.

5. The writ petition was disposed of vide judgment dated 26 th May, 2014,

recording the contentions,

(i) of the respondent no.1

(a) that in accordance with the EIA Notification dated 14th

September, 2006 only those projects and activities clearly

and specifically listed in the Schedule to the said

Notification require prior environment clearance and

projects and activities not listed in the Schedule were

exempt from the regulatory ambit of the said Notification;

(b) that though the activity of the respondent no.1 was

specifically included in the draft EIA Notification dated 15 th

September, 2005 but was omitted from the Schedule to the

Notification ultimately issued on 14th September, 2006; that

this omission clearly showed that the respondent no.1‟s

activity was not covered by the EIA Notification dated 14 th

September, 2006;

(c) that notwithstanding so, since the appellant no.1 was of the

view that the projects of the respondent no.1 require

environmental clearance, the respondent no.1, without

prejudice to its rights and contentions, had sought such

environmental clearance;

(d) that the appellant no.1 was however seeking to prosecute the

respondent no.1 under Sections 15 and 19 of the

Environment (Protection) Act, 1986 for failure to obtain

prior environmental clearance;

(ii) of the respondent no.2 that the respondent no.2 had vide Circular

dated 21st October, 2009 (supra) clarified that in case the built up

area of the project or activity was in excess of 20000 sq. mtrs., then

irrespective of the nature of the project or activity, the project or

activity would require environmental clearance under Items 8(a)

and 8(b) of the Schedule to the EIA Notification dated 14th

September, 2006 i.e. under the heading "Building and Construction

Projects" and "Township and Area Development Projects";

(iii) of the Additional Advocate General of the State of Haryana on

behalf of the appellant no.1 herein that though the appellant no.1

had in its reply to the writ petition raised preliminary objection to

the maintainability of the writ petition, yet it supported an

amicable resolution of the dispute and that if the legality and

validity of the EIA Notification dated 14th September, 2006 was

upheld and the respondent no.1 and its Directors undertook to

obtain ex post facto environmental clearance and complied with

the terms and conditions stipulated for the environmental clearance

and undertook to obtain environmental clearance for all their future

projects in Haryana, the appellant no.1 would consider not

initiating any criminal action against the respondent no.1 or its

Board Members / officials for not procuring prior environmental

clearance with regard to the projects being executed by the

respondent no.1 in the State of Haryana;

(iv) of the respondent no.1 in rejoinder that the Circular dated 21 st

October, 2009 (supra) pertained to SEZ and did not in any way

support the view that all projects and activities having built up area

in excess of 20000 sq. mtrs., irrespective of the nature of the

project or activity, would require prior environmental clearance.

6. On the basis of the aforesaid contentions, the learned Single Judge found/

held / directed:-

(A) that the EIA Notification dated 14th September, 2006 applies to all

projects in excess of 20000 sq. mtrs., irrespective of the nature of

the project or activity; omission of some words / expressions,

which are superfluous, from the draft EIA Notification would not

assist the respondent no.1; moreover deletion of words/expressions

from the draft Notification is not equivalent to deletion of

words/expressions from an existing Statute / Notification; similarly

internal notings of the Government officials cannot be a guide to

interpretation when the Notification is otherwise free from

ambiguity;

(B) that the respondent no.1 could not be said to have acted with mala

fide intent in not applying for prior environmental clearance as,

firstly, there was no authoritative judgment on the said issue and

secondly, upon the respondent no.1 being asked to seek

environmental clearance, it, without prejudice to its rights and

contentions immediately, even before filing the writ petition,

applied therefor;

(C) however the undertaking of the respondent no.1 to obtain ex post

facto environmental clearance and to comply with all the terms and

conditions stipulated therein was accepted and the respondent no.1

and its Board of Directors were ordered to be bound by the same;

(D) accordingly, the appellant no.1 was directed to consider the

respondent no.1‟s application for grant of ex post facto

environmental clearance for its projects in Haryana;

(E) that the appellant no.1 in its meeting held on 2nd July, 2010 under

similar facts and circumstances had taken a decision not to

recommend prosecution;

(F) consequently, the appellant no.1 was directed not to initiate any

criminal action against the respondent no.1 and / or its Board

Members / officials; and,

(G) it was clarified that the order having been passed in the peculiar

facts and circumstances of the case, shall not be considered as a

precedent.

7. As the aforesaid would show, the order impugned in this appeal is in the

nature of a consent order. However this appeal along with an application for

condonation of 55 days delay in filing thereof has been filed.

8. The only grievance agitated by the counsel for the appellants before us is

with respect to the part of the order of the learned Single Judge directing the

appellant no.1 not to initiate criminal action against the respondent no.1 and / or

its Board Members / officials.

9. Upon our pointing out to the counsel for the appellants that the said

direction of the learned Single Judge is based on the consent of the appellants,

the counsel for the appellants states that the said consent given by the advocate

appearing for the appellants before the learned Single Judge, was without

instructions and is contrary to the Statute i.e. Section 15 of the Environment

(Protection) Act which mandates criminal action and does not vest any

discretion. Reliance in this regard is placed on Union of India Vs. Mohanlal

Likumal Punjabi (2004) 3 SCC 628. It is further argued that the case

considered by the appellant no.1 in its meeting on 2 nd July, 2010 and with

respect whereto decision not to launch criminal action was taken, was on

entirely different facts. It is yet further argued that in fact this Court did not

even have territorial jurisdiction to entertain the present petition and that against

the order impugned in this writ petition, appeal lies to the National Green

Tribunal (NGT) and the writ petition was thus in any case not maintainable

before this Court, notwithstanding the consent of the advocate of the appellants.

Reliance in this regard is placed on Kusum Ingots and Alloys Ltd. Vs. Union of

India (2004) 6 SCC 254. It is yet further argued that the writ petition was also

not maintainable because the remedy of appeal before the NGT was available.

10. The senior counsel for the respondent no.1 has contended, i) that the

order impugned in this appeal is a consent / agreed order; ii) that the writ

petition was filed bona fide, seeking clarification from the respondent no.2

which is situated at Delhi; iii) that though in the Schedule to the draft

Notification dated 15th September, 2005 project or activity of automobile

manufacturing was mentioned but in the final Notification dated 14 th

September, 2006, the project or activity of automobile manufacturing units was

deleted and which led the respondent no.1 to believe that it was not required to

obtain prior environmental clearance; iv) that though an amendment to the

Notification dated 14th September, 2006 was carried out on 1st December, 2009,

amending the activity listed in Item Nos.8(a) and 8(b) of the Schedule to the

Notification dated 14th September, 2006 but only by adding a note thereto and

the respondent no.1 again bona fide believed that the said note providing that

projects / building in excess of 20000 sq. mtrs. would be covered would relate

to projects or constructions relating to the activity at Item Nos.8(a) and 8(b) of

the Schedule to the Notification dated 14th September, 2006 only and which did

not include the activity of the respondent no.1 writ petitioner; v) that there was

thus no certainty in this respect and no mala fides can be attributed to the

respondent no.1 for not obtaining the prior environmental clearance; and, vi)

that the contention of the appellant that the writ petition was not maintainable as

an appeal lies to the NGT is incorrect; the NGT (Western Zone) Bench in its

order dated 26th September, 2013 in appeal No.72/2013 titled Virani

Construction Company Vs. The State Level Environmental Impact

Assessment Committee (SEAC), Maharashtra has held such an appeal to be

not maintainable.

11. As far as the contention of the counsel for the appellants, of the consent

given on behalf of the appellants before the learned Single Judge being without

instructions is concerned, we find the consent in the present case to have been

given by the Additional Advocate General for the State of Haryana who was

appearing on behalf of the appellants and who had also filed the reply to the

writ petition. The senior counsel for the respondent no.1/writ petitioner on

instructions states that in fact such consent was given by the Additional

Advocate General after obtaining telephonic instructions and for which purpose

the matter was passed over by the learned Single Judge. In our view, a consent

given by the Additional Advocate General cannot be so lightly withdrawn by

the State. The appellant in this regard merely relies on a letter dated 23 rd June,

2014 written by the appellant No.1 to the Advocate General of the State of

Haryana contending that the consent was wrongfully given by the Additional

Advocate General. There is nothing to indicate that such a letter was in fact

delivered to the Advocate General or what action was taken thereon. The

counsel for the appellant who has filed this appeal, on our enquiry informed that

she is an empanelled counsel for the State of Haryana. The Supreme Court in

Periyar & Pareekanni Rubbers Ltd. v. State of Kerala (1991) 4 SCC 195

though observing that any concession made by government pleader in the Trial

Court cannot bind the Government, nevertheless held that the same yardstick

cannot be applied when the Advocate General makes the statement across the

Bar since the Advocate General makes the statement with all responsibility. In

fact, there is no plea also in the memorandum of appeal, and no officer who

may have been instructing the Additional Advocate General in the case has

filed an affidavit, that there was no instruction for what was stated by the

Additional Advocate General before the learned Single Judge. No steps have

been taken to elicit the comments of the Additional Advocate General who

would have been in a position to inform on whose instructions he had made the

statement before the learned Single Judge. We are therefore unable to accept

the said contention and which we are constrained to observe, has been taken in

a very casual manner and not befitting to the office of Additional Advocate

General.

12. The counsel for the appellant has not controverted that the order

impugned in this appeal, to the extent challenged, is a consent order. The first

question which thus arises is whether appeal against consent order is at all

maintainable.

13. Section 96 (3) of the Code of Civil Procedure, 1908 (CPC) bars an

appeal from a decree passed in Court with consent of the parties. However vide

Section 141 of CPC, the procedure provided therein with regard to a suit though

has been prescribed to be followed as far as applicable in all proceedings in any

Court of civil jurisdiction but explains that the word "proceedings" therein does

not include any proceeding under Article 226 of the Constitution of India.

However we find that the rule of „no appeal against consent order‟ though

codified in Section 96(3) of CPC, is essentially a rule of common law, having

its roots in the principle of estoppel. That being the position, we fail to see as to

why the same, notwithstanding the non-applicability of CPC to writ

proceedings, would not extend to writ proceedings. Of course, the same would

be subject to the exceptions as admissible to a plea of estoppel i.e. of there

being no estoppel against the statue and which leads to the other contention of

the appellant i.e. of the statue not permitting the appellant no.1 to waive

prosecution.

14. As far as Mohanlal Likumal Punjabi (supra), relied upon by the counsel

for the appellants is concerned, the concession made by the counsel in that case

was on a point of interpretation of statutory provision and it was in the said

context held that a wrong interpretation of a statutory provision on the basis of

concession, cannot bind even the party on whose behalf concession was made

and has no precedential value. However the present case is not concerned with

any concession made by the counsel on an interpretation of statutory provision.

The counsel appearing for the appellant before the learned Single Judge on the

contrary, though highlighting that the appellant had raised preliminary

objections to the very maintainability of the writ petition, supported an

amicable resolution of the dispute. The respondent no.1, in the writ petition had

inter alia challenged the interpretation being placed by the appellants on the

provisions of the EIA Notification dated 14th September, 2006. The counsel for

the appellants proposed before the learned Single Judge that if the respondent

no.1 did not challenge the interpretation of the appellants and undertook to

obtain ex post facto environmental clearance, the appellant would not initiate

criminal action. The judgment cited by the counsel for the appellants is thus not

applicable.

15. Section 15 of the Environment (Protection) Act to which reference in the

regard is made, or the Rules made or orders or directions issued thereunder do

not mandate the State or the appellants to prosecute the violators of the said

Act. All that Section 15 provides is that the said violators shall 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; it also provides for further

fine and imprisonment for continued violations. Section 16 of the Act provides

that where the offence is committed by a company, every person who at the

relevant time was directly in charge of and responsible to the company as well

as the company shall be deemed to be guilty. The proviso thereto carves out an

exception, on proof inter alia of exercise of all due diligence to prevent the

commission of the offence. Section 19 of the Act titled "Cognizance of

Offences" inter alia provides for the Court to take cognizance only on a

complaint made by the Central Government or by any authority or officer

authorised by that Government. The same also does not mandate the Central

Government or its delegatee to file such complaint. Notice may also be taken of

Section 24(2) of the Act which provides that where any act or omission

constitutes an offence punishable thereunder and also under any other statute,

then the offender shall be liable to be punished under the other statute and not

under the Environment (Protection) Act. We do not find anything in the Rules

framed under the Act also mandating the filing of the complaint of any offence

committed under the Act.

16. We are thus unable to comprehend the argument of the counsel for the

appellants that the consent earlier given on behalf of the appellant no.1, of not

prosecuting the respondent no.1, is contrary to the statute. The counsel for the

appellants has failed to elaborate on the said aspect.

17. Else, the decision to initiate a prosecution has long been regarded as a

classic discretionary function; though of course such discretion has to be

exercised bona fide and within well-defined parameters. The Constitution

Bench of the Supreme Court also in Sheonandan Paswan Vs. State of Bihar

(1987) 1 SCC 288, in relation to withdrawal of prosecution, held that the Court

could interfere in the said executive function only upon being satisfied that such

withdrawal was mala fide or motivated by improper considerations. The same is

again indicative of, whether, when and against whom to initiate prosecution

being quintessential example of governmental discretion. Similarly in

Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 also,

with respect to the sanction required under the Prevention of Corruption Act,

1947 for prosecution, it was held that the concerned Government has the right

to consider the facts of each case and to decide whether the public servant is to

be prosecuted or not. A useful discussion on the subject can also be found in the

judgment of the Full Bench of the Bombay High Court in Abasaheb Yadav

Honmane Vs. The State of Maharashtra MANU/MH/0218/2008, also

concerned with the power of withdrawal of prosecution and where the Full

Bench speaking through Chief Justice Swatanter Kumar (as his Lordship then

was) also observed that the scheme of the Code of Criminal Procedure, 1973

vests a Public Prosecutor with the power to withdraw from prosecution of all or

any of the accused involved in any crime including serious crimes and of

consequential acquittal of the accused without trial. Thus, we are unable to

interpret Sections 15 and 19 of the Environment (Protection) Act as preventing

the appellant from giving the consent from which it is now purporting to

renege.

18. Rather we find the stand taken by the Additional Advocate General

before the learned Single Judge to be a very fair and a correct one. It appears

that the State of Haryana at that time was more interested in the Notification

dated 14th September, 2006 as interpreted and enforced by it, being not

challenged and the dispute being amicably settled. It is for this reason only that

even though the respondent no.1 / writ petitioner without prejudice to its rights

and contentions had agreed to apply for and obtain ex post facto environmental

clearance, the learned Single Judge in accordance with the settlement proposed

by the learned Additional Advocate General proceeded to render a judicial

finding on the challenge by the respondent no.1 / writ petitioner to the

interpretation of the Notification though without any detailed discussion.

19. We are also of the view that no case for allowing the appellant to

withdraw the consent given before the learned Single Judge is made out, for the

reason that the respondent no.1 / writ petitioner also acted on the said consent.

Though the respondent no.1 / writ petitioner, even prior to filing the writ

petition and without prejudice to its rights and contentions had applied for ex

post facto environmental clearance but the respondent no.1 / writ petitioner in

light of the consent given by the advocate for the appellants changed its position

by not pressing its challenge to the interpretation by the appellants of the

Notification dated 14th September, 2006. As aforesaid, though the learned

Single Judge, by a judicial declaration has negated the challenge raising which

the writ petition was filed but merely to comply with the condition on which the

consent was given by the advocate for the appellant. There is nothing to show

that the respondent no.1 / writ petitioner pressed the challenge. If the challenge

had been pressed and arguments on that been made, the same would have found

mention in the order and which is quiet in that respect. The respondent no.1 /

writ petitioner having changed its position and by which change the appellant

has also benefited, the appellant now cannot be permitted to withdraw the same.

20. We may further add that the challenge, making which the writ petition

was filed, cannot be said to be totally bogus. It is not as if the writ petition was

dismissed in limine. Notice of the writ petition was issued and reply was filed

by the appellant. It was only at the stage of hearing that the writ petition was

disposed of in terms of the consent order.

21. It cannot also be lost sight of that the appellants even before us admit

having in the meeting held on 2nd July, 2010 taken a decision not to launch

prosecution against another violator of the provisions of the Environment

(Protection) Act. It matters not whether the grounds for doing so were different

from the facts of the present case. The said conduct of appellant no.1 belies the

argument raised before us of that the consent given by the Additional Advocate

General appearing for the appellants before the learned Single Judge could not

have been given being contrary to law.

22. As far as the argument urged by the counsel for the appellants of this

Court not having territorial jurisdiction to entertain the writ petition and the

order inter alia impugned in the writ petition being appealable before NGT, is

concerned, though the appellants undoubtedly in the reply filed to the writ

petition had taken the said plea but did not press the same at the time of hearing.

Counsels invariably, during the hearing do not press / urge all that is pleaded.

Whatever plea is not argued, is deemed to have been waived / given up. Rather

the Additional Advocate General appearing on behalf of appellants before the

learned Single Judge adopted a conciliatory approach and which we have herein

above held, he was entitled to and which approach we have found to be apposite

to the dispute. The objection to the territorial jurisdiction and to the

maintainability of the writ petition was thus clearly waived / given up. Also, it

was not a case of inherent lack of territorial jurisdiction of this Court. The main

relief claimed in the writ petition was of mandamus to the respondent no.2

herein situated within the territorial jurisdiction of this Court to act on the

representation of the respondent no.1/writ petitioner. Also the rule of not

entertaining a petition under Article 226 when alternative remedy is available is

not an absolute but discretionary one. Thus it cannot be said the learned Single

Judge then did not have the jurisdiction to act on the consent of the parties and

to dispose of the petition in terms thereof. We fail to see as to how Kusum

Ingots and Alloys Ltd. Vs. Union of India (2004) 6 SCC 254 assists the

appellants. All that has been held in the said judgment is that a writ Court may

refuse to exercise the jurisdiction if issue raised in the writ petition can be

adjudicated more conveniently by another High Court i.e. if the High Court

which is approached feels that it is not the forum conveniens.

23. We thus do not find any merit in the appeal which is dismissed. We

refrain from imposing any costs on the appellants and its officers who have

filed this appeal in the hope that the appellants will not press the matter further

which appears to being pursued to satisfy the ego of some officers of the

appellants.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE

SEPTEMBER 22, 2014 „gsr‟