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M/s Jain Housing & Constructions Ltd., (Presently M/s Jain Housing) Rep.by its Managing Director, Thiru.Sandeep Mehta, Chennai & Others v/s The Tamil Nadu Pollution Control Board, Rep.by its District Environment Engineer, Kancheepuram

    Crl.O.P. No. 29928 of 2019 & Crl.M.P. Nos. 16169, 16171 of 2019 & 1671 of 2020
    Decided On, 02 August 2022
    At, High Court of Judicature at Madras
    By, THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
    For the Petitioners: B. Kumar, Senior Counsel, S. Kamalesh Kannan, Advocate. For the Respondent: R. Shanmuga Sundaram, Advocate General Assisted R. Shanmugavalli, Standing Counsel.


Judgment Text
(Prayer: Criminal Original Petition has been filed under Section 482 of Cr.P.C., to call for the records in the complaint filed by the respondent in C.C.No.234 of 2019 on the file of the Chief Judicial Magistrate, Chengalpattu and quash the same.)

1. The 1st petitioner is a Firm involved in the construction of Multistoried residential Buildings. The 2nd petitioner is its Managing Director. The 3rd petitioner is the Power Agent and the 4th petitioner is its Power Agent – Manager.

2. The respondent/the Tamil Nadu Pollution Control Board has filed a complaint under Section 200 Cr.P.C against these petitioners to prosecute them under Section 25 of the Water (Prevention and Control of Pollution) Act 1974 (in short “ the Water Act”), Section 21 of the Air (Prevention and Control of Pollution) Act,1981 (in short “the Air Act”) and Section 19 of the Environment (Protection) Act, 1986 for offences punishable under Sections 44, 47 and 49 of the Water Act , Sections 37, 40, and 43 of Air Act and Section 15 and 16 of Environment( Protection) Act.

3. The sum and substance of the complaint:

The 1st accused Firm sought for Environmental Clearance (EC) from the State Environment Impact Assessment Authority (SEIAA), Tamil Nadu for its Multi-storied Residential Complex Project to construct 412 Nos. of dwelling units in 51,020.61 sq.m of total build-up area comprising stilt + 4 floors of 12 blocks at S.No 384/6B, 10, 11, 12, 13, 18, 396/4B, 5C, 5D, 397/1, etc at No: 48, Okkiyam Thoraipakkam Village, Tambaram Taluk, Kanchipuram District.

4. Considering the extent of the land, number of dwelling units proposed and its build-up area, total water requirement, daily fresh water requirement and its source expected solid waste generation and sewage treatment plant proposed, the Environmental Clearance was accorded on 27/04/2009, subject to the strict compliance of terms and conditions mentioned in Part-A and Part-B of the said proceedings. Part-A of the Environmental Clearance list out specific conditions consisting of two parts, viz Construction Phase and Operation Phase. Part-B of the Environmental Clearance list out General Conditions. In the said proceedings, it is specifically stated that the request for Environmental Clearance is considered as per the procedure prescribed under Environment Impact Assessment Notification, 2006 and the project activity covered in 8(a) of the Schedule and it falls under B2-category.

5. Couple of years later, the 1st accused made another application to the State Level Environment Impact Assessment Authority (SEIAA) for Environment Clearance for its Phase-II project adjacent to the existing Phase-I project mentioned above i.e 412 Nos. of dwelling units in 12 blocks.

6. This application was for proposed construction of a Residential Building of 8 blocks of Stilt + 4 Floors consisting 396 dwelling units with expected occupancies – 2178 persons, in total build-up area of 48,115,.17 sq.m at S.No. 386/8 (386/1D2), 393/2C, (393/2), 3, 4, 394/1A, 1B, 1C, 1D, 1E, 1F1, 2A, 2B1, 2B2, 2C, 2D1, 2D2, 2E1, 2E2, 2E3, 3A, 3B1, 3B2, 395/1A2, (395/1A), 395/3B, (3B1, 3B2), 4, 5A, 5B, 6, 7, 8, 9, 10A, 10B (395/10), 11 396/6, (6A, 6B), 7 & 397/2(397 pt) of Okkiyam Thoraipakkam Village, Shollinganallur Taluk, Kancheepuram District.

7. Considering the expected daily fresh water requirement, source of water supply, expected sewage after treatment, projected solid waste generation and the commitment letter given by the proponent i.e, the petitioners, Environmental Clearance for the second project was granted on 01/04/2015 by SEIAA, subject to terms and conditions mentioned therein.

8. The petitioners after obtaining revised planning permission for constructing 1016 units in 21 blocks, without fresh EC, completed both the projects with 1016 dwelling units in 21 blocks. (13 blocks comprising 620 dwelling units as against Environmental Clearance for 412 units in the first project and 8 blocks with 396 dwelling units in the second project.

9. In the impugned complaint it is alleged that, before constructing the multi-storied building as per revised plan, the petitioners should have obtained EC, which is mandatory pre-condition under the Notification of the year 2006. In the instant case, two Environmental Clearance obtained one for 412 units in 12 blocks, vide proceedings of SIEAA dated 27/04/2009 and another for 396 units in 8 blocks vide proceedings of SIEAA dated 01/04/2015. The petitioners, after obtaining a revised planning permission for constructing 21 blocks comprising 1016 dwelling units by clubbing the two projects in the location, have not obtained EC, based on the revised planning permission dated 23/12/2013. Instead on the strength of the two separate Environmental Clearance given on different inputs for assessing environmental impact, the petitioners have completed the project with deviation and sold out the dwelling units to various persons.

10. One Arjun Muthukrishnan a buyer of the dwelling unit from the petitioner filed an application before the Principal Bench of National Green Tribunal, New Delhi, to take action against the petitioners for violation of environment laws. Pursuant to the direction issued by the National Green Tribunal, the project site in question of the first accused was inspected on 18/08/2018 and 20/08/2018 by Pollution Control Board team and several violations of Environmental laws were noticed. Particularly, construction of 208 additional dwelling units in deviation of the original plan without EC was pointed in the report. Hence, the Pollution Control Board sought direction from NGT to initiate prosecution against the petitioners under Environment Laws for violation of EIA Notification, 2006.

11. The prayer in the application No.5 of 2018 filed by Tamil Nadu Pollution Control Board filed before National Green Tribunal are :-

“(A) Direct respondent Nos.1 and 3 to initiate prosecution against the 4th respondent for violation of the EIA Notification, 2006, the Environmental (Protection)Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974, and the Air (Prevention and Control of Pollution) Act, 1981.

(B) Direct the 4th respondent to relocate the STP to an appropriate location after obtaining consent to establish from the 3rd respondent and to design the STP scientifically so as to abate the pollution being caused and remediate the area.

(C) And pass such further order or orders as may be deemed fit, proper and necessary in the facts and circumstances of the case and thus render justice.”

12. In the above application, the Principal Bench of National Green Tribunal at New Delhi on 06/08/2018 passed the below order:-

“In view of the averments in the application noted above, we are of the view that TNPCB must look into the matter and after ascertaining the facts from State Level Environmental Impact Assessment Authority and Chennai Metropolitan Development Authority, take such action as may be called for under the law within one month from the date of receipt of this order.”

13. As a consequence, the complaint which is impugned in this petition came to be filed before the Chief Judicial Magistrate Court, Chengalpattu and the same been taken cognizance, numbered as C.C.No.234/2019 and summons issued to the petitioners.

14. The violations alleged under the respective Acts are:-

The Water (Prevention and Control of Pollution) Act, 1974:

(a) The unit has not applied for consent of the Board under Section 25 of the Water (P & CP)Act, 1974 as amended for the said project and the dwellings were occupied by residents and are in use generating sewage.

(b)The unit has constructed 13 blocks comprising of 620 Dwelling units as against 412 dwelling units as stipulated in the Environmental Clearance issued vide, SEIAA Letter No.SEIAA/TN/EC/8(a)/042/F-15/2009 dated 27.04.2009. The unit has not obtained necessary Environmental Clearance for the additional construction of 208 Dwelling Units and consequent increase in sewage and solid waste quantity.

(c)The unit has obtained revised planning permission vide planning permission letter P.P.No.B/Spl.Bldg/480 (1 to 34)/2013 in letter No.B2/13682/2011 dated 23/12/2013 for the construction of 21 blocks comprising of 1016 dwelling units in the said location. But the unit has not appraised and not obtained the Environmental Clearance for the entire project based on the revised planning permission dated 23/12/2013. Instead of that the unit has obtained two separate Environmental Clearances vide letter No.SEIAA/TN/EC/8(a)/042/F-15/2009 Dated 27.04.2009 (for 412 dwelling units) and vide letter No.SEIAA-TN/F- 1696//A/EC/8(a)/401/2015 dated 01.04.2015 (for 396 dwelling units) with a total of 808 dwelling units only.

Thus, in view of the above, the unit contravenes the provisions under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 as amended 1988.

15. The Air (Prevention and Control of Pollution) Act,1981:

(a)The unit has not applied for consent of the Board under Section 21 of the Air (Prevention and Control of Pollution)Act, 1981 as amended in 1987 for the said project and the dwellings were occupied by residents and were in use.

(b)The unit has constructed 13 blocks comprising of 620 Dwelling units as against 412 dwelling units as stipulated in the Environmental Clearance issued vide SEIAA Letter No.SEIAA/TN/EC/8(a)/042/F-15/2009 dated 27.04.2009. The unit has not obtained necessary Environmental Clearance for the additional construction of 208 Dwelling Units.

(c)The unit has obtained revised planning permission vide planning permission letter P.P.No.B/Spl.Bldg/480(1to34)/2013 in letter No.B2/13682/2011 dated 23/12/2013 for the construction of 21 blocks comprising of 1016 dwelling units in the said location. But the unit has not appraised and not obtained the Environmental Clearance for the entire project based on the revised planning permission dated 23.12.2013. Instead of that the unit has obtained two separate Environmental Clearances vide letter No.SEIAA/TN/EC/8(a)/042/F-15/2009 dated 27.04.2009 (for 412 dwelling units) and vide letter No.SEIAA-TN/F- 1696/A/EC/8(a)/401/2015 dated 01.04.2015 (for 396 dwelling units) with a total of 808 dwelling units only.

Thus, the unit contravenes the provisions under Section 21 of Air (Prevention and Control of Pollution)Act, 1981 as amended in 1987.

16. The Environmental (Protection) Act, 1986:

(i)All the 620 Dwelling units were occupied and the sewage generated is treated in the existing STP (below ground level) comprising of Collection Tank, Aeration Tank, Settling Tank, Filter Feed Tank, Sludge Holding Tank, treated Water Tank, PSF, ACF and the same was not operated effectively. Further the unit has not provided sludge dewatering system and the STP sludge is disposed outside through tanker lorry. The treated sewage was utilized for gardening purpose.

(ii)The unit has not proved the UV disinfection system for utilizing the treated sewage for toilet flushing.

(iii)The unit has not provided necessary arrangement for disposal of treated sewage during monsoon.

(iv)The unit has not provided pretreatement system such as screen & settlers before recharging of surface run off.

(v)The unit has not provided Flow meters to verify the quantity of sewage generated/treated and No log books are maintained.

(vi)The unit has not provided the Organic Waste Convertor for the treatment and disposal of organic kitchen waste.

(vii)The unit has not developed adequate green belt along the periphery of the plot.

(viii)The unit has not provided Solar energy for the illumination of common areas, lighting for garden and street lighting in addition to provision for Solar water heating.The unit has not provided a hybrid system (or) fully solar system for a portion of the apartment.

(i)The unit has not provided STP for the treatment of Sewage. The sewage generated from the partly occupied dwellings was collected in the collection Tank located within this unit premises and disposed through tanker lorry without any treatment.

(ii)The unit has not provided organic waste convertor for the treatment and disposal of organic kitchen waste.

(iii)The unit has not provided pretreatment system such as screen & Settlers before recharging of surface run off.

(iv)The unit has not provided Solar energy for the illumination of common areas, lighting for garden and street lighting in addition to provision for Solar water heating. The unit has not provided a hybrid system (or) fully solar system for a portion of the apartment.

(v)The unit has not provided common facilities such as Sewage Treatment Plant, Solid Waste management System, Scientific rain water harvesting system, green belt development, environment monitoring system as stipulated in the Environmental Clearance.

(vi)The unit has not provided arrangement for supplying fresh water requirement of 181 KLD through CMWSSB as committed in the affidavit.

17. Petitioners Plea:-

The Learned Senior Counsel for the petitioners, submitted that, the petitioners commenced the project, after obtaining EC on 27/04/2009 for construction of 412 dwelling units in 51,020.61 sq.mts. build-up area. However, during the course of construction, as per the mandate of Government of Tamil Nadu, a certain percentage of units had to be reserved for Economic Weaker Section( in short “EWS”). Therefore, changes made to accommodate EWS in the scheme, without exceeding the permitted build-up area under the EC. This modification was done in consultation with the authorities of SIEAA and it is in tune with the circular of the Ministry of Environment and Forest IA Division dated 14/12/2006, which clarified that in cases of change in product mix, changes in the quantities of numbers of products may be allowed without prior Environmental Clearance by the concerned State Pollution Control Board provided such changes in the quantities of products are in same category and are within the previously granted overall total limits.

18. Therefore, the learned Senior Counsel for the petitioners submitted that though the quantity of the product (i.e) dwelling units changed in this case, the construction did not exceed the overall limit permitted. In fact, the permitted build up area for the first project was 51,020.61 sq.mts (412 dwelling units). Whereas the petitioners had constructed their project of 620 dwelling units in 48,614.44 sq.mts, much less than the permitted overall total limits. The construction was done, after obtaining due planning permission. Hence, the clarification of the Government vide, its circular dated 14/12/2006 no prior EC required for quantity of product squarely applies to the petitioners.

19. The subject matter of the complaint of Arjunan Muthukrishnan before National Green Tribunal(NGT) was in respect of common Sewage Treatment Plant (STP) constructed for Phase I project (620 Dwelling units) and for Phase II ( 396 Dwelling units). As per the direction issued by National Green Tribunal (NGT), the Pollution Control Board caused notice for alleged violation and the petitioners submitted their reply. Pending proceedings before the Board and before conclusion of the said proceedings, the criminal prosecution was launched before the Chief Judicial Magistrate, without following the procedure laid under law for launching prosecution also in violation of the NGT order dated 21/08/2019 which directed the Board only to conclude the show cause proceedings. As far as the criminal prosecution, it was observed by National Green Tribunal that the maintainability of the criminal proceedings, is a matter to be decided by the Court concern. Hence, the present petition to quash the complaint has not maintainable.

20. It is submitted on behalf of the petitioners that, the show cause proceedings subsequently vide letter No.T2/TNPCB/LAW/LAIII/NGT/F 022327/MMN/2020 dated 25/08/2020 culminated in ordering compensation of Rs.2,19,00,000/- payable by the builder/1st petitioner. Against this order, statutory appeal was preferred before the Appellate Authority, TNPCB in Appeal No.58/2020. The Appellate Authority vide order dated 29.09.2021 allowed the Appeal and set aside the order passed by the Pollution Control Board levying environmental compensation of Rs.2,19,00,000/- on the ground that the provisions of Water (Prevention and Control of Pollution) Act and Air (Prevention and Control of Pollution) Act are not applicable to the residential housing complexes and no prior consent is necessary to establish sewage plant in respect of residential housing complex.

21.The learned Senior Counsel submitted that the above decision of the appellate authority is based on the judgment rendered by the Division Bench of the Delhi High Court rendered in Delhi Pollution Control Committee vs. Splendor Landbase Ltd., reported in [(2021) SCC online Del.400] and emphasised that the impugned complaint is nothing but the repetition of the allegations found in the show cause notice which ultimately ended in favour of the petitioners in Appeal No.58/2020, dated 29/09/2021. The complaint laid without considering the objections and explanations given by the petitioners resulted in two proceedings for the same violation, one before the authorities empowered Environmental Laws and another before the Judicial Magistrate through the impugned criminal proceedings.

22. Relying upon the Division Bench Judgment of Delhi High Court in Splendor Landbase Ltd case cited supra, it was submitted that, Section 21 of the Air (Prevention and Control of Pollurtion) Act and Section 25 of the Water (Prevention and Control of Pollurtion) Act does not apply to the residential buildings. When the build up area of the construction is well within the Environmental Clearance granted and the Circular of the Department issued in the month of December 2006 clarified that no prior permission is required in case of alteration in the plan when it does not exceed the permitted limit, the prosecution is not sustainable. Further, the first petitioner firm has been exonerated in the adjudication proceedings for the same set of facts, therefore, the parallel criminal proceedings cannot be allowed to continue.

23. Respondents Plea:-

The Learned Advocate General, appearing for the TNPCB/ respondent/complainant submitted that, at two different point of time, two Environmental Clearances were granted to the petitioners. First for 412 dwelling units and Second for 396 dwelling units, both with specific terms and conditions. In the first EC, one such condition mentioned in Part BGeneral Condition is that in the case of any change(s) in the scope of the project, a fresh appraisal by the SEIAA shall be obtained. In the instant case, the petitioners though changed the scope of project by putting one extra block and 208 more dwelling units, did not obtain fresh appraisal from SEIAA.

24. The first Environmental Clearance was granted for 412 dwelling units in 12 blocks, after assessing the environmental impact as below:-

“The project proposal involves the construction of multi-storied residential complex 412 Nos. as per Annexure II of Form IA. The area of the plot is 34363 sq.m and the total built-up area as reported is 51020.61 sq.m comprising of stilt + 4 floors of 12 blocks. Water requirement of the project is 278 KLD and daily fresh water requirement is 185 KLD, which will be met from the supply of CMWSSB as per Lr.No.CMWSSB/ ENGG/ CCRCP/ITC/Spl/2008 dated 10.11.2008. it is proposed to provide Sewage Treatment Plant 250 KLD capacity for the treatment of sewage. The treated sewage of 249 KLD will be used for toilet flushing (93 KLD), gardening & landscaping (12 KLD) and the excess will be discharged into CMWSSB sewer line. Solid waste generation has been projected as 1236/kg/day. The power required is 0.8 MW with backup power of 250 KVA DG Set. The total cost of the project is about Rs.21.46 Crores.”

25. By increase the number of dwelling units, the scope of the project has been changed, consequently the impact on environment also changed. The clarification given by the Ministry of Environment and Forest dated 14/12/2006 in connection with product mix, changes in the quantities or numbers of products within the previously granted overall total limits, is applicable to the projects only when the scope of the project remain unchanged. In the case of the petitioners, by increasing the number of dwelling units, the daily fresh water requirement, solid waste generation, treatment of sewage, discharge of sewage all gets increased therefore it requires fresh appraisal from SEIAA. The omission to get fresh EC in tune with the revised building plan permission, attracts the penal provisions of the Environmental Laws.

26. The Learned Advocate General submitted that, as per the order passed on 02/08/2016 issued under the directions of the Central Pollution Control Board, Tamil Nadu Pollution Control Board has categorised buildings and construction projects more than 20,000 sq.m built up area and having waste water generation 100 KLD and above fall under RED category of industries. The Phase-I project of the petitioners was permitted for 412 dwelling units in 51,020.61 sq.mts. built up area. Though the actual built up area is 48,614.44 sq.mts, the construction being above 20,000 sq.mts., the building falls under RED category.

27. Recently, the Ministry of Environment, Forest and Climate Change (Impact Assessment Division) through its Office Memorandum dated 5th May, 2022, has issued clarification with regard to non-requirement of Environmental Clearance amendment due to change in conceptual plan arising out of statutory requirements in building and construction sector. The Ministry has clarified that, any change in configuration/planning/ design of the appraised building Project for which EC granted shall not require amendment of EC, subject to no change in (i) Built up Area; (ii) Floor Area Ratio (FAR); (iii) Change in exterior spaces/green belts, parking walkways and driveways that are covered including attics and outdoor sports courts. Further, there shall be no change in the designated use of the building, number of dwelling units, height of the building, number of floors and basements and total excavation of earth of the building/construction/township/area development project, so as not to require any changes in the already approved Environmental Impact Analysis (EIA) and Environmental Management Plan (EMP).

28. According to the Learned Advocate General, the above Office Memorandum was issued on the representations from various stakeholders requesting amendment to the mandate of prior EC for building construction/area development projects, even in case of minor changes during the execution of the project, when it does not adversely impact the environment and are within the scope of already approved EC. Whereas, in the case of the building constructed by the first petitioner firm, the change in the construction has a direct impact on the environment. Instead of approved 412 dwelling units in 12 blocks, the petitioners have put up 620 dwelling units in 13 blocks. Resulting in extra excavation of earth, more requirement of daily fresh water for the occupants in the extra 208 dwelling units, more effluent and need for proportionate effluent treatment and solid waste management. Hence, they are liable to be prosecuted for violation of respective Acts.

29. In response to the reliance of Hon’ble Delhi High Court Division Bench Judgement and the consequential order of the Appellate Authority dated 29/09/2021, the Learned Advocate General submitted that, the Division Bench of the Delhi High Court in Splendor Landbase Ltd case, differed with the Learned Single Judge purposive interpretation of the expressions “operation” and “process” used in Section 21 of the Air (Prevention and Control of Pollution) Act and Section 25 of the Water (Prevention and Control of Pollution) Act respectively. The Division Bench of the Delhi High Court, considering the action of the Delhi Pollution Control Committee issuing notice for violations or imposing penalty for violations under these two Acts, has held that ablution in the toilet or washing vegetables and dishes in the kitchen of a residential complex, within the precincts of residential flats, by no stretch of imagination can be called or labelled as an operation or a process. The text of this observation has to be read in the context, it is said and not out of context. The said observation cannot be a dictum to be followed, in a case where the construction of additional block, extra dwelling units and alteration of the building plan, without proper EC and prior consent of SAIAA attracts prosecution for contravening the Environment laws.

30. The records and pleadings scrutinised in the light of the submissions made by the learned counsels on either side.

31. Relying upon the Environmental Clearance granted on 27/04/2009 for Phase-I and Environmental Clearance granted on 01/04/2015 for Phase-II, the petitioners justifies the deviation in the building constructed by them, as per the Revised Planning Permission granted on 23/12/2013 for the construction of 21 blocks comprising 1016 dwelling units. It is obvious from the records that in the year 2013, the Revised Planning Permission was sought and obtained. Whereas, the application for Environmental Clearance for the second phase to construct 396 dwelling units in 8 blocks was made subsequently and obtained only in the year 2015. Therefore, it is clearly seen from the documents that the construction of Phase-I and Phase-II, though for the purpose of EC shown as two different units and construction for Phase-I commenced, without any prior permission from SEIAA disclosing the construction of additional block and extra dwelling units, the first petitioner has sold it to various third parties on the strength of Revised Planning Permission. Thereafter, EC for Phase-II has been obtained not disclosing the revised planning permission. It is admitted by the petitioners that for treatment of effluents, they have put a common sewage treatment plant for the total 1016 dwelling units. Neither in the EC’s granted on 27/04/2006 and 01/04/2015 nor the clarification circular of the Ministry of Environment dated 14/12/2006 entitles the first petitioner Firm to construct, without appraisal of SIEAA and prior Environmental Clearance, as per the Revised Planning Permission granted to it on 23/12/2013 for construction of 1016 dwelling units in 21 blocks. The revised plan tantamount to change in the scope of the project. Both EC’s were granted subject to conditions. One of the conditions is ‘fresh appraisal of SIEAA' is required, in case of any change(s) in the scope of the project’. Just because, the build up area did not exceed the permitted limit, it cannot be a reason to ignore this condition. More so, when the second EC for 396 dwelling units obtained separately for 8 blocks/396 dwelling units suppressing the revised planning permission granted for consolidated construction of 21 blocks/1016 units.

32. Clause (xxix) of the Environmental Clearance conditions imposed by SEIAA in its order dated 01/04/2015 reads as below:-

“The SEIAA, TN may cancel the environmental clearance granted to this project under the provisions of EIA Notification 2006, if, at any stage of the validity of this environmental clearance, if it is found or if it comes to the knowledge of this SEIAA, TN that the project proponent has deliberately concealed and/or submitted false or misleading information or inadequate data for obtaining the environmental clearance.”

33. By increase of block and dwelling units, the parameters required for impact assessment gets changed. One cannot for granted take it is as just change in interior plan of the dwelling units, which requires no prior permission. As clarified in the office Memorandum dated 5th, May, 2022, by the Ministry of Environment when the change by increasing the number of dwelling units by about 50% cannot be construed as minor change or to be presumed that it will not affect adversely the environment.

34. The observations made by the Delhi High Court in Splendor Landbase Ltd. case, will not apply to the facts of this case, since the effluents and solid waste collected from 1016 dwelling units in an organised manner and let out without adequate treatment plant. The collection of sewage and solid waste from 1016 dwelling units and treating at one place; undoubtedly is an ‘operation’ and ‘process’ respectively. Therefore, what applies to individual resident or few group of residents will not apply to residential complexes put up in more than 20,000 sq.mt build up area. The effluent and sewage let out alone shall matter and not who or how it is let out.

35. The learned Senior Counsel for the petitioners referring the judgment of the Supreme Court rendered in Radheshyam Kejriwal –vs- State of West Bengal and another reported in [(2011) 3 SCC 581] and submitted that, there cannot be a parallel proceedings for same violation.

36. This judgment arises out of economic offence wherein the parties were prosecuted as well as adjudicated under the provisions of FERA, 1973. By majority of 2:1, while reversing the order of the High Court confirming the rejection of application for dropping criminal proceedings, it was observed that having exonerated in adjudication proceedings on merit, quashing the criminal proceedings is sustainable. Whereas, the minority view of the Hon'ble Supreme Court in this judgment was that, “finding in adjudication proceedings is not binding on Court in prosecution proceedings nor does prosecution depends on the result of the adjudication”.

37. This Court, on reading the impugned complaint, which is the subject matter of the prosecution and the facts in adjudication proceedings finds that though there are few overlapping facts regarding violation, the adjudication proceedings primarily on the location and capacity of the STP constructed in common for both the Phases. The subject matter of

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the impugned complaint is on a larger violation i.e., for not properly obtaining the prior clearance for the project before the commencement of the project. 38. The learned Senior Counsel for the petitioners relying upon the judgement of the Supreme Court in Pahwa Plastics Pvt. Ltd. and another –vs- Dastak NGO and others reported in [(2022) SCC On Line SC 362], submitted that even assuming that as per the revised building plan of 13 blocks/620 dwelling units (21 blocks/1016 dwelling units), prior EC is required, instead of initiating prosecution, the Pollution Board ought to have directed the propounder to get Ex-post facto Environmental Clearance. 39. In Pahwa Plastic case, the Hon’ble Supreme Court, observing that the Environmental (Protection) Act, 1986 does not prohibit Ex-post facto Environmental Clearance, said the establishment request for Ex-post facto approval cannot be withheld, if the establishment has complied the requirement of the applicable laws, Rules and Regulations. In Pahwa Plastic case, the petitioner was engaged in manufacturing of organic chemical by name Formaldehyde, in its units at Rohtak and Yamuna Nagar. Consent to Establish (CTE) was issued for both the units. However, the establishment omitted to get Environmental Clearance(EC) on the impression that for manufacturing Formaldehyde, prior EC is not required. After knowing the statutory requirement, the establishment applied for Expost facto EC, but PCB declined. In the said context, the Hon’ble Supreme Court, recorded that, 'the Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the units and dependant on the units for their survival'. Taking note of the fact that the petitioner has already applied for Ex-post facto EC, the Hon'ble Supreme Court allowed the appeal and set aside the order of the PCB impugned in the Writ Petition, with a direction to take a decision on the applications sought for Ex-post facto EC. 40. The said judgment cannot be taken advantage by the petitioners because, in the case in hand, first the petitioners have not so far applied for Ex-post facto Environmental Clearance. Next, the criminal action initiated does not have anything to do with the economy of the country or protection of livelihood of employees. The factors, which has weighed the Hon'ble Supreme Court to consider grant of Ex-post facto EC not present in this case. Also to be noted that in the same judgment, the Hon'ble Supreme Court has also cautioned that, Ex-post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time, ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations. 41. As far as facts involved in the case under consideration, the complaint is loaded with materials sufficient to prosecute the petitioners. The action taken by the PCB is not out of any malicious action or groundless. On the face of the records relied, offences under The Water (Prevention and Control of Pollution) Act 1974, The Air (Prevention and Control of Pollution) Act, 1981 and The Environment (Protection) Act, 1986 are made out. Therefore, the Criminal Original Petition for quash the complaint is dismissed as devoid of merits. Consequently, connected Miscellaneous Petitions are closed.
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