Sanjay Kumar Singh v. The State of Jharkhand

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. For the Petitioners For the Resp.-State : Ms. Akriti Shree, Advocate : Mr. Manoj Kumar, G.A.-III : Mr. Deepankar, AC to G.A.-III ….. By the Court:-

Heard the parties. This Writ Petition has been filed invoking the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to quash the entire criminal proceeding in connection with W.P. (Cr.) No.745 of 2023 1

Complaint Case No. 918 of 2022 including the order taking cognizance dated 27.09.2022, passed in the said case by the learned Chief Judicial Magistrate, Seraikella. Though notices were served upon the respondent nos. 2 & 3 but no one turns up on behalf of the respondent nos. 2 & 3 in-spite of repeated calls. The brief fact of the case is that the respondent no.3 filed Complaint Case No. 918 of 2022 alleging therein that M/s Vidhi Developers Private Limited of which the petitioner nos. 1 & 2 are said to be directors and though the Environment Impact Assessment (EIA) Notification bearing No. S.O. 1533 (E) dated

14.09.2006 of the Ministry of Environment and Forests, Government of India requires that all new projects and activities listed in the Schedule to the said notification requires prior environmental clearance from the concerned regulatory authority but the petitioners as well their company, which has been arrayed as accused no.1 of the said complaint; have constructed residential project without obtaining Environmental Clearance as mandated through Environment Impact Assessment Notification, hence it is alleged the petitioners have committed the offence punishable under Section 15 and 16 of the Environment (Protection) Act, 1986.

It is submitted by the learned counsel for the petitioners by drawing attention of this Court to serial no. 8(a) of the Schedule of the said Notification dated 14.09.2006 that prior environmental clearance is required for the project or activity relating to building W.P. (Cr.) No.745 of 2023 2 and construction projects if the same is more than or equal to 20000 sq. metre and less than 1,50,000 sq. metre. Drawing attention of this Court to annexure-10 series at page no. 151, it is submitted by the learned counsel for the petitioners that the company of the petitioners have constructed three different buildings which are not contiguous to each other at any point; vide three different permits obtained from the Adityapur Area Notified Council (AANC) vide Permit No. 704, 1422 and 591 of built-up area 10,519 Sq. metre, 4,442 sq. metre and 14,587 sq. metre respectively. It is next submitted that there is no allegation against the petitioners or their company of having constructing any project of building and construction of area more than or equal to 20,000 sq. metre but less than 1,50,000 sq. metre. Hence, even if the entire allegations made in the complaint are considered to be true, still there being no requirement of obtaining Environmental Clearance by the petitioners and by not taking any such Environmental Clearance, no offence is made out against the petitioners. Therefore, it is submitted that the continuation of this criminal proceeding will amount to abuse of process of law more so when the cognizance has been taken only against the petitioners in capacity of their being directors of the company Vidhi Developers Private Limited but no cognizance has been taken against the Vidhi Developers Private Limited. Hence, it is submitted that the prayer as prayed for in this writ petition be allowed. W.P. (Cr.) No.745 of 2023 3

The learned counsel for the State fairly submits that there is no averment in the complaint as to, what was the area of the building said to be constructed by the petitioners or their company. It is also fairly submitted that as per serial no. 8(a) of the Schedule of the said Notification dated 14.09.2006, prior Environmental Clearance is required only if the area of the construction to be made in a building and construction project is greater than or equal to 20,000 sq. metre but less than 1,50,000 sq. metre but it is submitted that the prayer to quash the cognizance order is not maintainable in a writ petition invoking the jurisdiction under Article 226 of the Constitution of India and also that the plea of the petitioners that the building constructed by them are less than 20,000/- sq. metre is a plea which can be taken as a defence during the trial of the case. Hence, it is submitted that this writ petition being without any merit be dismissed.

Having heard the rival submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that in order to entertain a complaint by a Magistrate before taking cognizance, the Magistrate must be satisfied that there is sufficient material to prima facie constitute any offence. In the absence of that, certainly a Magistrate is not supposed to take cognizance of any complaint.

Now coming to the facts of the case, the undisputed fact remains that prior environmental clearance is required if the area of construction is greater than or equal to 20,000 sq. metre but less than 1,50,000 sq. metre. As submitted at the Bar, there is W.P. (Cr.) No.745 of 2023 4 absolutely no averment in the complaint-which is indisputably in official complaint filed by an officer of the concerned regulatory authority, that the construction made by the petitioner or their company was greater than or equal to 20,000 sq. metre and less than 1,50,000 sq. metre. In the absence of the same, certainly even if the averment made in the entire official complaint are considered to be true, still the same falls short from constituting any offence punishable under Section 15 or under Section 16 of the Environment (Protection) Act, 1986.

High Court of Jharkhand, Ranchi Dated the 12th February, 2025 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) W.P. (Cr.) No.745 of 2023 5