Shiv Dutta Sharma vs Government Of India & Another
2023 Latest Caselaw 3614 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                  CRLMC No. 4616 of 2014


Shiv Dutta Sharma                        ....             Petitioner
                               Mr. Bigyan Kumar Sharma, Advocate


                               -Versus-

Government of India & Another                ....   Opposite Parties

                       Mrs. Jyotsnamayee Sahoo, CGC for O.P.No.1
                        Mr. Tapas Kumar Praharaj, SC for O.P.No.2

                                And
                    CRLMC No. 5130 of 2014

Shiv Dutta Sharma                        ....             Petitioner
                               Mr. Bigyan Kumar Sharma, Advocate


                               -Versus-

S.D.M., Champua, Keonjhar & Another ....        Opposite Parties
                                 Mr. Tapas Kumar Praharaj, SC

          CORAM:
          MR. JUSTICE R.K. PATTANAIK

                DATE OF JUDGMENT:18.04.2023

 1.

Instant petitions under Section 482 Cr.P.C. have been pressed into service by the petitioner for quashing of the criminal proceedings in connection with 2(c)CC Case Nos. 44 and 99 of 2013 pending in the file of respective courts and the impugned orders dated 6th December, 2013 and 31st July, 2013 under Anneuxre-2 on the grounds inter alia that the proceedings are not tenable in law since no prima facie case is made out for any such offence under Section 15 of the Environment (Protection) Act, 1986 (hereinafter referred as 'the Act').

Shiv Dutta Sharma and Government of India & Another

2. The complaints are in respect of two Iron and Manganese ore mines managed by the petitioner and since the ground of challenge is common, both the petitions have been clubbed together for disposal by the following order.

3. The leases were granted in favour of the petitioner by the State Government for 20 years vis-à-vis the mines. The Collector, Sundargarh, namely, opposite party No.2 being authorized by the Government of India filed the complaints against the petitioner alleging contravention of the provisions of the Act. On receiving the complaints, the learned courts below took cognizance of the offence under Section 15 of the Act and summoned the petitioner. In so far as the complaints are concerned, it is alleged that the petitioner had enhanced production during the periods under consideration without obtaining environmental clearance as required under the provisions of the Act. It has further been alleged therein that the petitioner operated the mines without complying the procedural safeguard which was hazardous to the environment, for which the general public of the affected area suffered so also the Government which lost huge revenue and therefore, the petitioner is liable to be criminally prosecuted for the alleged offence. The learned courts below considering the complaints took cognizance of the offence under Section 15 of the Act and then summoned the petitioner to appear on the date fixed. The orders of cognizance under Anneuxre-2 have been challenged by the petitioner on the solitary ground that even by considering the complaints, no any offence under Section 15 of the Act can be said to have been committed and hence, therefore, the criminal proceedings are not sustainable in law.

Shiv Dutta Sharma and Government of India & Another

4. Heard Mr. Sharma, learned counsel for the petitioner, Mr. Praharaj, learned SC for the State-opposite party No.2 besides Mrs. Sahoo, learned counsel for Government of India-opposite party No.1.

5. Mr. Sharma, learned counsel for the petitioner submits that the initiation of the criminal proceedings after the orders of cognizance under Anenxure-2 and summoning the petitioner are contrary to the settled position of law and against the materials on record. According to Mr. Sharma, the mining leases in favour of the petitioner are neither new projects nor the petitioner has undertaken any expansion or modernization so as to require environmental clearance which is being alleged in the complaints. It is submitted that Environment Impact Assessment Notification 1994 made it mandatory to obtain Environment Clearance (EC) from the Ministry of Environment and Forest, Government of India (MoEF) before undertaking any new project or project involving expansion or modernization for specified activities mentioned in Schedule(I) thereof and followed by a Notification dated 27th January, 1994. It is contended that the Indian Bureau of Mines also issued a clarification on 7th March, 2023 stating therein that deviation up to 20% of Ore production proposal in a mining plan may be generally ignored. Referring to the EIA Notification of 2006 which was issued on 14th September, 2006, Mr. Sharma, learned counsel for the petitioner submits that the prior EC is necessary in respect of new projects or in case of any activities of expansion or modernization of existing projects and furthermore a mining project of major mineral of more than 5 hectare lease area would require such clearance from MoEF in view of the said Notification at the time of renewal of lease. So, therefore, the contention of the petitioner is that the complaints do not disclose

Shiv Dutta Sharma and Government of India & Another

as to if there was or has been any such expansion or modernization of the mining projects. It is claimed that since the projects are not new projects, EC would have to be obtained only if any activities of expansion or modernization had taken place and as no such facts are alleged in the complaints, it cannot be said that the petitioner violated any of the provisions of the Act and Rules and committed the alleged offence as a result.

6. According to the petitioner, the allegations in the complaints are vague and that apart, even accepting at their face value, no prima facie case is made out nor any cognizable offence is said to have been disclosed and therefore, continuation of such proceedings before the learned courts below would be nothing but an abuse of process of law and hence, to secure the ends of justice, they are liable to be quashed. While contending so, Mr. Sharma, learned counsel for the petitioner relies on the following decisions, such as, State of Haryana & Others Vrs. Ch. Bhajan Lal & others AIR 1992 SC 304; M/s. Pepsi Foods Ltd. & Another Vrs. Special Judicial Magistrate & others AIR 1998 SC 128; and Kapil Agrawal & others Vrs. Sanjay Sharma & others 2021(5) SCC 524.

7. Opposite party No.1 filed counter affidavit denying the averments of the writ petition. Mrs. Sahoo, learned counsel for the Government of India-opposite party No.1 referring to the counter affidavit submits that there has been violation from the side of the petitioner in absence of forest clearance. It is submitted that the mining leases in favour of the petitioner, who applied for an EC in 2007 with enhanced capacity was recommended by the State Environmental Impact Assessment Authority, Odisha on the condition to submit Stage-1 forest clearance. It is stated that the Ministry of Environment and Forest(MoEF) issued Notification in 1994 which demanded EC in case of expansion or modernization

Shiv Dutta Sharma and Government of India & Another

of any mining project and similarly after the judgment in M.C. Mehta Vrs. Union of India & others of the Supreme Court in W.P.C. No. 4677 of 1985, a clarification was issued that all mining projects of major minerals would have to have the clearance if the lease areas are more than five hectares which is to be obtained at the time of renewal of leases. According to Mrs. Sahoo, learned counsel for opposite party No.1, in view of Notification of 1994 and judgment in M.C. Mehta (supra), in case of any activities of expansion or modernization, EC is a statutory requirement and in so far as the petitioner is concerned, he initially submitted a proposal for such clearance and accordingly, terms of reference was issued on 25th June, 2008 and later on the proposal was transferred to State Environmental Impact Assessment Authority (SEIAA) and thereafter, the State Expert Appraisal Committee (SEAC) recommended for E.C. subject to submission of Stage-1 forest clearance which he did not do in respect of the mining projects and having no such clearance obtained from MoEF, the complaints were filed against him for violation of the provisions of the Act and Rules and hence rightly the learned courts below took cognizance of the offence by the orders under Anneuxre-2 which, therefore, do not call for any interference.

8. As per the complaints, EC to be necessary in view of EIA Notification of 2006 and prior to it by virtue of a Notification of 1994 and in so far as the petitioner is concerned, for the alleged periods during which, there has been enhanced production of Ore, he was also required to obtain such clearance from the Ministry of Environmental Forest (MoEF), Government of India. It has been alleged in the complaints that since EC was not obtained by the petitioner for the periods in question, hence, the violation of the provisions of the Act and Rules.

Shiv Dutta Sharma and Government of India & Another

9. Mr. Sharma, learned counsel for the petitioner submits that admittedly the mining projects are not new ones and are in operation on the strength of leases. It is claimed that there has been no expansion or modernization in the activities of mining projects and therefore, the case of the petitioner did not require EC which is necessary in view of the Notification of 1994 and 2006. Precisely stated, according to the petitioner, since there are no averments in the complaints regarding any such expansion or modernization of the mining projects, EC was not necessary and in such view of the matter, the criminal proceedings pending before the learned courts below should not be allowed to continue and survive and hence, in exercise of inherent jurisdiction, it should be quashed.

10. However, considering the counter affidavit and submissions of Mrs. Sahoo, learned counsel for opposite party No.1, the Court is of the view that the complaints have been filed against the petitioner since there was enhanced production during the alleged periods and it was without having EC in place. Such enhanced or increase in production which is alleged by opposite party No.1 is the basis and foundation for initiation of prosecution against the petitioner. It is asserted that any such enhanced capacity in production would be on account of an activity of expansion and therefore, it was a statutory demand for EC which the petitioner failed to comply with. If the counter affidavit is read as a whole, it is made to appear that alleged enhanced production of mining Ore would fall within the ambit of expansion for which EC was necessary and as the petitioner did not have any such forest clearance, the complaints were filed against him, which in the considered view of the Court, cannot said to be untenable in law. Though in very many words the expansion of the mining projects

Shiv Dutta Sharma and Government of India & Another

is not averred in both the complaints, but that by itself cannot lead to a conclusion or an inference to draw that it is not a case of expansion of the projects despite the fact that there was enhanced production during the alleged periods. The enhanced production vis-à-vis the mining projects whether demanded EC may also be examined by the learned courts below considering the complaints. For the above reasons, the Court is not inclined to quash the impugned orders under Annexure-2 and the complaints on any such ground leaving it open for a decision by the learned courts below.

11. Accordingly, it is ordered.

12. In the result, the CRLMCs stand dismissed.

(R.K. Pattanaik) Judge

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