Nafr High Court
Case Details
1 2025:CGHC:47833 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 449 of 2017 Pankaj Jain S/o R.C. Jain, Aged About 42 Years Ex- General Manager, Bharat Aluminium Co. Ltd. (BALCO) 270 MW Power Plant, Jamnipali, Police Station Darri, Tahsil And District Korba, Chhattisgarh, At Present Working And Residing At Vedanta Aluminium Limited Jharsuguda, Orissa. ... Petitioner versus 1. R.P. Shinde Regional OfÏce, Chhattisgarh Environment Conservation Board, Near Tahsil OfÏce, Rampur, Korba, Tahsil And District Korba, Chhattisgarh. 2. Atanu Ghose Choudhari Chief Power Operation M/s Bharat Aluminum Company Limited, 540 Megawatt Power Plant, Balco Nagar, Korba, Police Station And Post Balco Nagar, Civil And Revenue District Korba, Chhattisgarh. In Charge OfÏcer No.1. ... Respondents CRMP No. 1588 of 2023 R.K. Dhancholiya, General Manager, M/s. Bharat Aluminum Company Limited, 540 Megawatt Power Plant, Balco Nagar, Korba Plice Station, District Korba (C.G.) S/o Late Sh. Jagannath Dhancholiya, Aged About 47 Years (Now 55 years), R/o Q. No. 78, Type-D, NTPC Township, Korba, Chhattisgarh. In-Charge OfÏcer No.2 ---Petitioner Versus 1. R.P. Shinde, Regional OfÏcer, Regional OfÏce, Chhattisgarh Environment Conservation Board, Near Tahsil OfÏce, Rampur, Korba, Police Station Station And Post Korba, Civil And Revenue District- Korba Chhattisgarh. 2 2. Atanu Ghose Choudhari, Chief ( Power Operation) M/s. Bharat Aluminum Company Limited, 540 Megawatt Power Plant Balco Nagar, Korba, Police Station And Post Balco Nagar, Civil And Revenue District- Korba Chhattisgarh. ... Respondents For Petitioner
Legal Reasoning
16. Upon careful consideration of the facts and circumstances of the case, it is evident that the Petitioner being the General Manager of the Company was not in charge of the day-to-day operations of the Company and cannot be held personally responsible for any alleged contraventions committed by the Company. Neither the respondent No. 1 was authorized by the Environment Conservation Board to file complaint in personal capacity and further, the petitioner also could not have been impleaded as accused in personal capacity. The petitioner being the General Manager was not personally liable for any 8 latches on the part of the Company. The respondent No. 1 has failed to substantiate the allegation that the petitioner was solely and individually responsible for any default. 17. Section 15 of the Act of 1981 provides that – A State Board may, by general or special order, delegate to the Chairman or the member-secretary or any other ofÏcer of the Board subject to such conditions and limitations, if any, as may be specified in the order, such of its powers and functions under this Act as it may deem necessary. 14. Considering the above submissions, it is apparent that the complaint filed by Respondent No.1—Shri R.P. Shinde, Regional OfÏcer, Chhattisgarh Environment Conservation Board suffers from a fundamental jurisdictional infirmity. No express authorization or delegation of power by the competent authority has been placed on record empowering him to initiate prosecution under the provisions of the Environment (Protection) Act, 1986, and the Air (Prevention and Control of Pollution) Act, 1981. Furthermore, the Petitioner, being General Manager (Power) at the relevant time, cannot be automatically held vicariously liable for alleged non-compliance without specific allegations or evidence establishing that he was in actual charge of and responsible for the conduct of the business of the Company. The impugned complaint lacks averments to that effect. The record also reveals that the Company was making consistent efforts toward fly ash utilization, and that the statutory notifications themselves contemplate a phased and progressive compliance mechanism, including rollover of targets across years. Therefore, the learned Magistrate's act of taking cognizance without recording the complainant’s statement under Section 200 CrPC despite there being no clear proof of public servant status or authorization violates procedural safeguards. The Revisional Court also failed to appreciate these legal infirmities and summarily rejected the revision. In view 9 of the above, the continuation of proceedings against the Petitioner amounts to abuse of the process of law and deserves to be quashed. 18. For the foregoing reasons, order taking cognizance dated 17.08.2015 passed in Criminal Complaint Case No. 2232/2015 by the Judicial Magistrate First Class, Katghora, District Korba (C.G.) and the order dated 24.12.2016 passed by the Additional Judge to the Court of Additional Sessions Judge, Katghora, District Korba in Criminal Revision No. 80/2015 (in CRMP No. 449 of 2017) and order taking cognizance dated 24.02.2015 and 25.02.2016 along with further criminal proceedings pending before the Chief Judicial Magistrate, Kathgora, District- Korba in Criminal Complaint Case No. 490 / 2015 (in CRMP No. 1588 of 2023) are hereby quashed. 19. Resultantly, both the petitions stand allowed. Sd/- (Ramesh Sinha) Chief Justice Abhishek ABHISHEK SHRIVAS Digitally signed by ABHISHEK SHRIVAS Date: 2025.09.26 11:42:38 +0530
Arguments
: Mr. Abhishek Sinha, Senior Advocate assisted For Respondent No. 1 : Mr. Animesh Tiwari, Advocate. by Mr. Ghanshyam Patel, Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice 17.09.2025 Order on Board 1. Heard Mr. Abhishek Sinha, learned Senior Advocate assisted by Mr. Ghanshyam Patel, learned counsel, appearing for the petitioner. Also heard Mr. Animesh Tiwari, learned counsel, appearing for the respondents. 2. By way of this petition under Section 482 CrPC the petitioner in CRMP No. 449 of 2017 has prayed for following reliefs :- “i) Quash the criminal complaint (Annexure P/4) filed by the respondent and quash the impugned order dated 17/8/2015 (Annexure P/5) and the consequential order passed in revision dated 24/12/2016 (Annexure P/6), in the interest of justice. ii) Any other relief, as this Hon'ble Court may deem fit and proper may also be granted.” 3. In CRMP No. 1588 of 2023 the petitioner has prayed for following reliefs:- “i To call for the entire record leading to issuance of process to the present petitioner; 3 ii) To quash the impugned order dated 24.02.2015 and 25.02.2016 Annexure P/1 and P/7, respectively; iii. To quash the complaint filed against the petitioner as bad and illegal and consequently quash it; iv. Any other relief, as this Hon’ble Court may deem fit and proper may also be granted.” 4. Since both the petitions have common facts and issues, they are being considered and decided by this common order. However, CRMP No. 449 of 2017 is taken as the lead case. 5. Brief facts of the case are that the Petitioner was working as General Manager – Power in M/s Bharat Aluminium Company Limited, in 270 MW Power Plant of the Company in the past, and is presently working at Vedanta Aluminium Limited, Jharsuguda (Odisha). The 270 MW Thermal Power Plant of the Company uses coal as fuel for generation of electricity. The Government of India, Ministry of Environment & Forests, pursuant to the directions issued by the Hon’ble Delhi High Court, issued Notification No. S.O.763(E) dated 14.09.1999 under the Environment (Protection) Act, 1986, restricting the excavation of topsoil for manufacture of bricks and promoting the utilization of fly ash in the manufacture of building materials and in construction activity within a specified radius of fifty kilometers from coal or lignite-based thermal power plants. 6. As per the aforesaid notification, the fly ash generated from thermal or lignite-based power plants shall be utilized by construction agencies, brick manufacturers, cement industries, landfilling, mine-filling, and user agencies engaged in construction works, including those carried out by the Public Works Department and the National Highways Authority of India, within a radius of 50 kms of a thermal or lignite-based power plant. The thermal or lignite-based 4 power producers are required to make fly ash available to such user agencies. The monitoring authority for ensuring utilization of fly ash is the concerned Regional OfÏcer of the State Pollution Control Board/Committee, or the Central Pollution Control Board, as the case may be. Any non-compliance by the user agency, i.e., failure to use the fly ash in the products as mandated, shall result in cancellation of its lease or license. The Government of India, Ministry of Environment & Forests, vide Notification No. S.O. 979(E) dated 27.08.2003, amended the earlier Notification dated 14.09.1999, extending the specified distance from 50 kms to 100 kms. The Government of India, Ministry of Environment & Forests, vide Notification No. S.O.2804(E) dated 03.11.2009, further amended the Notifications dated 14.09.1999 and 27.08.2003. As per the amended notification, all coal or lignite-based thermal power stations and expansion units in operation before the date of this notification are required to achieve the target of fly ash utilization as per the table specified therein. (1) 1. 2. 3. S.No. % Utilization of Fly Ash (2) Target Date (3) At least 50 % of fly ash One year from the date of issue of this generation. notification. At least 60 Two years from the date of issue of this % of fly ash generation. notification. At least 75% of fly ash Three years from the date of issue of this generation. notification. 4. At least 90% of fly ash Four years from the date of issue of this generation. notification. 5. 100% of fly ash Five years from the date of issue of this generation. notification. 7. The unutilized fly ash in relation to the target during any year, if any, shall be utilized within the next two years in addition to the targets stipulated for those years. The balance unutilized fly ash accumulated during the first five years (i.e., the difference between generation and the utilization target) shall be utilized 5 progressively over the next five years, in addition to achieving 100% utilization of the current generation of fly ash. The words “balance unutilized fly ash accumulated during first five years shall be utilized progressively over next five years” provide leverage for roll-over of the obligation into the subsequent five- year period, i.e., 2014–15 to 2018–19. A plain reading of the said notification clearly suggests that there is no violation by the present Applicant. 8. Mr. Sinha, learned Senior Advocate for the petitioner submits that the respondent No.1, namely Shri R.P. Shinde, filed a complaint, wherein it has been averred that the complainant, being posted as Regional OfÏcer, Chhattisgarh Environment Conservation Board, Korba, who is a public servant. According to respondent No. 01 he was competent to file a complaint under the provisions of the Environment (Protection) Act, 1986. It has further been averred by respondent No. 1 that the Head OfÏce of the Chhattisgarh Environment Conservation Board, Raipur, has delegated authority to file such complaints. The complaint was registered as Criminal Case No. 2232/2015 before the Court of the Chief Judicial Magistrate, Korba. The complaint was filed under Section 15 of the Environment (Protection) Act, 1986, and Sections 22, 22A, 37, 39, and 41 of the Air (Prevention and Control of Pollution) Act, 1981. 9. The allegations are that the petitioner, while working as General Manager, was responsible for the operation of the industry, and correspondences and documents were executed under his signature. Therefore, being the responsible ofÏcer of the organization, he is personally accountable for compliance or violation of the statutory provisions. It has been further alleged that M/s Bharat Aluminium Co. Ltd., 270 MW Power Plant, during the period September 2013 to August 2014, generated 4,79,806 MT of fly ash, out of which 2,75,463 MT was utilized. Thus, only about 57.41% of the 6 fly ash was used, whereas 100% utilization was required under the relevant notifications. Hence, it was alleged that there was contravention of Section 15 of the Act of 1986 and Sections 22, 22A, 37, 39, and 41 of the Act of 1981. 10. Both the Company and the petitioner duly replied to the notices issued by the Regional OfÏcer from time to time, specifically stating that BALCO is complying with all applicable laws for running its power plant, and has obtained all necessary permissions/approvals from the concerned authorities. The Company has also obtained consent to operate under the Air (Prevention and Control of Pollution) Act, 1981, and the Environment (Protection) Act, 1986, and has complied with the provisions thereof, as well as the terms and conditions of the consent. The fly ash generated is being utilized as per the notifications issued by the Ministry of Environment & Forests, and BALCO has been regularly submitting annual fly ash utilization reports to the Ministry as well as the State Environment Pollution Control Board. 11. The complaint was filed before the Judicial Magistrate, Katghora, District Korba. The Learned Magistrate, vide order dated 17.08.2015, issued process under Section 204 of the Code of Criminal Procedure and registered the complaint without recording the statement of the complainant under Section 200 CrPC, on the ground that the complaint was filed by a public servant. The complaint has been registered under Section 15 of the Environment (Protection) Act, 1986, and Sections 22, 22A, 37, 39, and 41 of the Air (Prevention and Control of Pollution) Act, 1981 (for short, “ Act of 1981”). 12. Mr. Sinha further submits that the petitioner filed a revision petition challenging the order of cognizance dated 17.08.2015, inter alia, on the ground that no offence was made out and the complaint was not maintainable. The Revisional Court, however, vide order dated 24.12.2016 passed in Criminal Revision No.80/2015, dismissed the revision petition without properly appreciating the facts of the case and the applicable legal provisions. 7 13. Mr. Sinha next contends that the Judicial Magistrate First Class, Katghora, took cognizance on 17.08.2015 based solely on a complaint filed by Respondent No.1, Shri R.P. Shinde, Regional OfÏcer of the Chhattisgarh Environment Conservation Board. He further contends that Shri R.P. Shinde, the complainant, had no authority or right to file the complaint against the petitioner on his individual capacity as the company and ofÏcial capacity of the petitioner must be arrayed as party. Additionally, it is submitted that the petitioner was not in charge of the day-to-day operations of the Company and, therefore, cannot be held responsible for any alleged contraventions committed by the Company. 14. On the other hand, learned counsel appearing for the respondent No. 1 supported the order taking cognizance dated 17.08.2015, which warrants no interference by this Court under Section 482 Cr.P.C. However, he fairly submits that the respondent No. 1 was not personally authorized by the Chhattisgarh Environment Conservation Board. 15. I have heard learned counsel for the parties, perused the pleadings and documents appended thereto.