M/S.Vlb Trut v. The Tamil Nadu Pollution

Order 1983 Note: Principal Notification No SO. 394(E), published in Gazette No.185. Dt:16 4 1987No.9 and 10 and entries relating thereto inserted vide $0.2371E1. dt.29.3.89 published in the Clarette No. 171. dt.

29.3.89. S.N. 11 and entries relating thereto inserted vide $.0.656(E), d.24.8.1989 published in the Gazette No 519, dt 21.8.1989."

¶21On a careful perusal of the above notification, Central Government has authorised the Chairman or Member-Secretary of the State Pollution Control Board constituted under Section 4 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) or a State Pollution Control Board under Section 5 of the Air (Prevention and Control of Pollution) Act,1981 (14 of 1981) are competent to file complaint as per Sl.No.4 of the above Notification. Besides Sl.No.7 and 8 are also authorised Regional Officers of the State Pollution Control Board who have been delegated powers under Section 20, 21 and 23 of the Water (Prevention and Control of Pollution) Act, 1974 and under Section 24 of the Air (Prevention and control of Pollution) Act, 1981. Only 5 categories have empowered under the Notification by the Central Government to file a complaint viz., Chairman or Member Secretary of the TNPCB and State Pollution Control Board constituted under Section 5 of the Air (Prevention and control of Pollution) Act, the Regional Officers who have been delegated powers under Section 20, 21 and 23 of the Water (Prevention and Control of Pollution) Act 1974 and Regional Officers of the State Pollution Control Board who have been delegated powers under Section 24 of the Air (Prevention and Control of Pollution) Act, 1981.

¶22The complaint in this case has been filed by the Tamil Nadu Pollution Control Board, Represented by Thiru R.Umaiyakunjaram, District Environmental Engineer. Such a view of the matter when the Central Government authorised State Pollution Control Board to file a complaint, complaint filed by the Board cannot be faulted and maintainable. Therefore, contention of the Petitioner Counsel as to the filing of complaint by Tamil Nadu Pollution Control Board cannot be countenanced." Thus, it is clear that the respondent has authority to launch prosecution as against the petitioners and as such the respondent is a competent to lodge complaint as against the petitioners.

¶15Further the grounds raised by the petitioners and the documents produced before this Court have to be considered before the trial Court by let in evidence. All the grounds are mixed question of facts and law and it requires deliberate trial before the trial Court by let in evidence. Therefore, this Court finds no ground to quash the proceedings initiated as against the petitioners.

¶16Insofar as the petitions in Crl.O.P.Nos.6241 & 15572 of 2014 are concerned, it is relevant to rely upon the Judgment of the Hon'ble Supreme Court of India reported in 2022 7 MLJ 497 (SC) in the case of D.Swamy Vs Karnataka State Pollution Control Board and others, wherein the Hon'ble Supreme Court of India held as follows:- "41. The EP Act does not prohibit ex post facto Environmental Clearance. Grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms.

¶44Even though this Court deprecated ex post facto clearance, in Alembic Pharmaceuticals Ltd. Vs. Rohit Prajapati and others (supra), this Court did not direct closure of the units concerned but explored measures to control the damage caused by the industrial units. This Court held:- "However, since the expansion has been undertaken and the industry has been functioning, we do not deem it appropriate to order closure of the entire plant as directed by the High Court.""

¶17Therefore, the Environmental Protection Act does not prohibit ex post facto Environmental Clearance. Similarly, the grant of ex post facto environmental clearance in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our view not impermissible. As per the notification and subsequent clarification, the Committee decided and granted environmental clearance subject to the payment of compensation.

¶18It is also relevant to rely upon the Judgment of the Hon'ble Supreme Court of India in Civil Appeal No.4795 of 2021 dated

25.03.2022 in the case of Pahwa Plastics Pvt. Ltd and others Vs Dastak NGO and others, wherein it was held as follows:- "63. Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. The deviant industry may be penalised by an imposition of heavy penalty on the principle of 'polluter pays' and the cost of restoration of environment may be recovered from it.

¶64The question in this case is, whether a unit contributing to the economy of the country and providing livelihood to hundreds of people, which has been set up pursuant to requisite approvals from the concerned statutory authorities, and has applied for ex post facto EC, should be closed down for the technical irregularity of want of prior environmental clearance, pending the issuance of EC, even though it may not cause pollution and/or may be found to comply with the required norms. The answer to the aforesaid question has to be in the negative, more so when the HSPCB was itself under the misconception that no environment clearance was required for the units in question. HSPCB has in its counter affidavit before the NGT clearly stated that a decision was taken to regularize units such as the Apcolite Yamuna Nagar and Pahwa Yamuna Nagar Units, since requisite approvals had been granted to those units, by the concerned authorities on the misconception that no EC was required.

¶65It is reiterated that the 1986 Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible. As observed by this Court in Electrosteel Steels Limited (supra), this 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 dependent on the units in their survival.

¶66Ex 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. This Court is of the view that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate.

¶67Accordingly, the appeal is allowed. The impugned order is set aside in so far as the same is applicable to the units of the Appellants established and operated pursuant to CTE and CTO from the HSPCB in respect of which applications for ex post facto EC have been filed. The Respondent shall take a decision on the applications of the Appellants for EC in accordance with law within one month from date. Pending decision, the operation of the Pahwa Yamuna Nagar Unit and the Apcolite Yamuna Nagar Unit, in respect of which consents have been granted and even public hearing held in connection with grant of EC, shall not be interfered with."

¶19The petitioners in Crl.O.P.Nos.6241 & 15572 of 2014, being the Educational Institutions, are entitled to get the benefit of exemption from obtaining the environmental clearance for the buildings constructed even before the notification No.S.O.3252 (E) dated 22.12.2014 and the subsequent notification dated 19.05.2022.

¶20In view of the above, the entire proceedings cannot be sustained as against the petitioners in Crl.O.P.Nos.6241 & 15572 of 2014, and the same are liable to be quashed. Accordingly, the proceedings in C.C.No.46 of 2014 pending on the file of the learned Judicial Magistrate VII, Coimbatore, and the proceedings in C.C.No.3 of 2014 pending on the file of the learned Judicial Magistrate, Sriperumbudur, are hereby quashed.

¶21In result, the Criminal Original Petitions in Crl.O.P.Nos.9182, 10781, 12111, 12190, 12499, 14660, 15563, 17323, 17326, 24125 & 31654 of 2014, 8463, Crl.O.P.Nos. 8464 & 18137 of 2016 and Crl.O.P.No.2498 of 2017 are dismissed and the Criminal Original Petitions in Crl.O.P.Nos.6241 & 15572 of 2014 are allowed. Consequently, connected miscellaneous petitions are closed.

22.12.2023 Internet: Yes Index : Yes/No Speaking/Non Speaking order rts To

¶1The Judicial Magistrate No.VII, Coimbatore.

¶2The Judicial Magistrate, Sriperumbudur.

¶3The District Environmental Engineer, Tamil Nadu Pollution Control Board, Coimbatore (South) 42-D, S.N.R.College Road, Peelamedu, Coimbatore – 641 004. Coimbatore District. Crl.O.P.No.6241oofo2014oetc., ooG.K.ILANTHIRAIYAN.oJ, rts COMMONoORDERoIN Crl.O.P.Nos.o6241,o9182,o10781,o12111,o12190,o12499,o14660, 15563,o15572,o17323,o17326,o24125o&o31654oofo2014 8463,o8464o&o18137oofo2016oando2498oofo2017 M.P.No.1oofo2014o(13oNos.)oM.P.No.2oofo2014o(3oNos.) Crl.M.P.Nos.o4411otoo4413,o8611oofo2016oando1752o&o1753oofo2017

22.12.2023 Pageo26oofo26

IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 30.11.2023 & 01.12.2023 PRONOUNCED ON : 22.12.2023 CORAM: THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl.O.P.Nos. 6241, 9182, 10781, 12111, 12190, 12499, 14660, 15563, 15572, 17323, 17326, 24125 & 31654 of 2014 8463, 8464 & 18137 of 2016 and 2498 of 2017 M.P.No.1 of 2014 (13 Nos.) M.P.No.2 of 2014 (3 Nos.) Crl.M.P.Nos. 4411 to 4413, 8611 of 2016 and 1752 & 1753 of 2017 Crl.O.P.No.6241 of 2014 :- 1. M/s. VLB Trust, Rep. by its Chairperson and Managing Trustee, S.Malarvizhi, Kovaipudur, Coimbatore – 641 042. 2. S.Malarvizhi, W/o. Late S.Venkatram, Chairperson and Managing Trustree, M/s.VLB Trust, Kovaipudur, Coimbatore – 641 042. 3. K.P.Muruganantham Authorized Singatory, M/s.VLB Trust, Kovaipudur, Coimbatore – 641 042. ... Petitioners Vs. The Tamil Nadu Pollution Control Board, Rep. by its District Environmental Engineer, Coimbatore (South) K.Ravichandran, 42-D, S.N.R.College Road, Peelamedu, Coimbatore – 641 004. Coimbatore District. ... Respondent Prayer: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to call for the entire records connected with the proceedings of C.C.No.46 of 2014 pending on the file of the learned Judicial Magistrate No.VII of Coimbatore and quash the same. For Petitioners in Crl.O.P.No. 6241 of 2014 : Mr.E.K.Kumaresan For Petitioners in Crl.O.P.No. 10781 of 2014 : Mr.B.Kumar, Senior Counsel For Mr.M.S.Ramachandran For Petitioners in Crl.O.P.No. 12111 of 2014 : Mr.B.Kumar, Senior Counsel For Mr.R.Karthikeyan For Petitioners in Crl.O.P.Nos. 9182, 12190, 12499, 14660, 17323, 24125 of 2014 and 8463 & 8464 of 2016 : Mr.R.Saravanakumar For Petitioners in Crl.O.P.Nos. 15563 & 15572 of 2014 : Ms.M.Sneha For Petitioners in Crl.O.P.No. 31654 of 2014 : Mr.R.Thirunavukarasu For Petitioners in Crl.O.P.No. 8611 of 2016 : Mr.AR.M.Arunachalam For Petitioners in Crl.O.P.No. 2498 of 2017 : Mr.R.Mohan For Respondent in all Crl.O.Ps : Mr.R.Shanmugasundaram Advocate General Assisted by Mrs.Shanmugavalli Sekar Standing Counsel for TNPCB COMMON ORDER These petitions have been filed to quash the complaints lodged as against the petitioners in all the petitions, for the offences under Sections 15 r/w. 16 & 19(a) of the Environment (Protection) Act, 1986. 2. Since the issues raised in all these petitions are common and the petitioners preferred these petitions for similar prayer, this Court is inclined to pass common order. 3. The crux of the complaint in all the petitions is that as per the notification S.O.No.394(E) published in Gezette No.185, dated 16.04.1987, the State Pollution Control Boards are authorised to take legal action for the indicative violation under the provisions of the Environment Production Act. All the jurisdictional environmental engineers are authorised to launch prosecution on behalf of the Tamil Nadu Pollution Control Board. Further, the Ministry of Environment and Forest, Government of India, vide its Environment Impact Assessment Notification, dated 14.09.2006, mandates that on and from the date of publication, the required construction of new projects or activities or expansion or modernization of existing projects or activity listed in the schedule to its notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the central government or as the case may be, by the State level environment impact assessment authority. 4. The petitioners in all the petitions are involved in the construction of residential/commercial buildings and in the course of their business, they commenced construction to develop housing unit/commercial complex of more 20,000 square metre. The petitioners projects involve construction of residential/commercial building area of more than 20,000 square meters and it requires prior environmental clearance, as per the notification dated 14.09.2006. The construction of all the petiti