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SCR.A/99420/2008 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 994 of 2008
==========================================
SANJAY
DALMIA DIRECTOR- GHCL LTD & 11 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
==========================================
Appearance
:
M/S TRIVEDI
& GUPTA for Applicant(s) : 1 - 12.
PUBLIC
PROSECUTOR for Respondent(s) : 1,
MR RITURAJ M MEENA for
Respondent(s) : 2,
==========================================
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
16th May 2008 the following order was passed by this Court
(Coram: Hon’ble Ms Justice H.N. Devani).
Heard
Mr.B.B.Naik, 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 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 12th December, 2006,
and the same is pending clearance before the concerned authority.
Considering
the submissions advanced by the learned advocate for the
petitioners, issue notice returnable on 8th
July, 2008. By way of ad-interim relief, further proceedings
pursuant to Criminal Case No.964 of 2007 pending before the learned
Judicial Magistrate First Class, Veraval, are hereby stayed.
Mr.K.P.Raval,
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. Today,
the matter was listed for further hearing of ad interim relief. Mr.
Bharat Naik learned counsel appearing for the petitioners in all the
cases submitted that what is recorded in para 2 of the order dated
16th May 2008 is not satisfactorily answered by the
complainant. Learned counsel appearing for the petitioner submitted
that lease deed for mining limestone , initially was executed in
favour of M/s GIIC Ltd on 5th January 1987 which came to
be transferred to M/s GHCL on 20th June 1993 and
therefore 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
16th May 2005 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. Interim
relief granted earlier to continue as interim relief 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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