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SCR.A/1119/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1119 of 2008
==========================================
GHCL
LIMITED & 2 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
==========================================
Appearance
:
M/S TRIVEDI
& GUPTA for Applicant(s) : 1 - 3.
PUBLIC
PROSECUTOR for Respondent(s) : 1,
MR RITURAJ M MEENA for
Respondent(s) : 2,
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CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 02/09/2008
ORAL
ORDER
1. Heard
learned advocate Mr. Naik with Mr. Kunal Naik for Ms/ Trivedi and
Gupta, Mr. Rituraj Meena for respondent No.2 and learned Additional
Public Prosecutor Mr. K. T Dave for respondent No.1.
2. On
18th June 2008 the following order was passed by this
Court (Coram: Hon’ble Ms Justice H.N. Devani).
Heard
Mr.Rakesh Gupta, learned advocate with Mr.Kunal Naik, learned
advocate for M/s Trivedi & Gupta Advocates, learned advocates
for the petitioners.
Attention
of the Court is drawn to the allegations made in the complaint to
point out that the main allegation is that the petitioners have
committed breach of the provisions of the notification dated 14th
September, 2006 issued by the Ministry of Environment & Forests.
Referring to the notification dated 14th September,
2006, it is pointed out that the same applies only to new projects
or activities or on the expansion of modernization of existing
projects or activities based on their potential environmental
impacts. It is submitted that insofar as the Company in question is
concerned, the same has not undertaken any new project or activities
or expansion or modernization. It is submitted that, in the
circumstances, provisions of notification dated 14th
September, 2006 would not be applicable. However, to be on the
safer side, the Company has made application under the said
notification dated 14th September, 2006, and the same is
pending clearance before the concerned authority.
In
the aforesaid circumstances, issue notice returnable on 8th
July, 2008. By way of ad-interim relief, further proceedings
pursuant to the Criminal Case No.1242 of 2007 pending before the
learned Judicial Magistrate First Class, Veraval, are hereby stayed.
Mrs.M.L.Shah,
learned Additional Public Prosecutor waives service of notice on
behalf of the respondent No.1 State of Gujarat.
Direct
service is permitted qua respondent No.2.
3.
Learned counsel appearing for the petitioner submitted that lease
deed for mining limestone, was granted to the petitioner and
thereafter no new mining operation have been started by the company
after the issuance of notification dated 14th September
2006. Not only that after issuance of notification, the company had
already applied for getting environmental clearance to the Government
of India which came to be granted by certificate dated 31st
July 2008 by the Ministry of Environmental and Forest of the
Government of India.
3.1 In
addition to the above learned counsel further submitted that para
16 of the complaint alleges breach of provisions of notification
dated 14th September 2006 issued by the Ministry of
Environment and Forests, Government of India, and admittedly the
complaint by and large referred to the report dated 10th
August 2006 of the mines area managed by the petitioner prior to
issuance of the notification.
3.2 Learned
counsel further submitted that neither the the petitioners have
constructed nor expanded their activities which require any
clearance as per the above notification and therefore the respondent
is not empowered to complain under this Act. Learned advocate
further submitted that incidentally reference is made about
non-observation of certain provisions of the Water Act, the Air Act.
In view of above, according to the learned counsel for the
petitioner ad interim relief granted earlier to continue as interim
relief.
4. Mr.
Rituraj Meena learned advocate submitted that apart from the
alleged breach of notification dated 14th September 2006
as found on the inspection of the site, petitioner herein was
carrying out mining activity by violating certain provisions of the
Air Act, water Act and environment clearance was not obtained as
envisaged under the notification. Learned advocate further submitted
that the petitioner herein is supposed to follow and comply with the
provisions of the Air Act, water Act and provisions contained in
various notifications issued even prior to the notification dated
14th September 2006.
5. Thus
according to the learned counsel for respondent No. 2, the complaint
need not be stayed and ad interim relief granted by the order dated
18th June 2008 may be vacated.
6. Having
heard learned counsel appearing for the parties and perusal of the
record including the notification dated 14th November
2006 and the inspection report of the mines area of the applicant,
subsequent certificate by Ministry of Environment and Forests
granting environmental clearance and the pleadings of the parties,
prima facie I am of the opinion that the allegations in the
complaint are for breach of notification dated 14th
September 2006 which came to be published in the Gazette and became
effective after the visit to site by the officer on 10th
August 2006. Besides applicability of the environment (Protection)
Act 1986, specifically the penal provisions for non-compliance of
provisions of other Acts, namely the Air Act and Water Act deserves
consideration at this stage.
7. Hence,
Rule returnable on 12th November 2008. Learned advocate
appearing for respective parties waives service of rule. By way of
Interim relief ad-interim relief granted earlier of further
proceedings of Criminal case No. 1242 of 2007 registered before the
Court of Judicial Magistrate, First Class Veraval to continue till
further order. However, this will not preclude the respondent GPCB
No. 2 herein to take action in accordance with law for breach if
any by the applicant under provisions of any other Act.
(Anant
S. Dave,J.)
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