Environment (Protection) Act A Special Enactment, Takes Precedence Over CrPC; Bombay HC Dismisses Plea Seeking FIR Against Kumar Mangalam Birla [Read Judgment]

In a 34-page judgment uploaded today, Justice Bharati Dangre did not find merit in the applicant's contention that an investigation could be carried out as per Chapter XII of the Criminal Procedure Code and held that provisions of the Environment (Protection) Act would override the provisions of the CrPC as it is a special enactment.

Case Background

Applicant alleged that the respondents started construction of a Commercial building in South Mumbai's Worli area without obtaining the Environmental Clearance from the State Environment Impact Assessment Authority (SEIAA) under the EIA Notification of 2006. He, therefore, filed a complaint under Section 156(3) of the Criminal Procedure Code seeking police investigation for the alleged offences under Sections 420, 120-B and Section 187 of the Indian Penal Code read with Section 15 of the Environment (Protection) Act. The said complaint came to be rejected by the Metropolitan Magistrate in view of the barrier contained in Section 19 of the Environment (Protection) Act. Sessions Court also rejected the subsequent revision application.

Section 19 talks about the conditions under which cognizance of a complaint under the said act can be taken, it states-

No court shall take cognizance of any offence under this Act except on a complaint made by—

(a) the Central Government or any authority or officer authorised in this behalf by that Government; or

(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Central Government or the authority or officer authorised as aforesaid.

Submissions

Applicant's counsel Aditya Pratap submitted that the offence contained under Section 15 of the Environment (Protection) Act, 1986 is non-cognizable whereas it would be liable to be classified as a cognizable offence in view of the provisions of Part-II of Schedule-I of the Criminal Procedure Code. '

Thereafter, he argued that since this special enactment prescribes a penalty which may extend to Rs.5 lakh along with imprisonment of five years, the said case would fall within the ambit of a 'cognizable offence' to be triable by the Magistrate of First Class, but the Act has classified the offence to be 'non-cognizable', Pratap said.

According to the applicant's counsel, any order under Section 156(3) of the Criminal Procedure Code is at the pre-cognizance stage and this is not the initiation of trial and at this stage no cognizance is taken within the meaning of the provisions of Section 190 of the Criminal Procedure Code.

Senior Advocate Amit Desai appeared for Birla and others. He questioned the locus standi of the applicant calling him an uninterested party in property in question with a sole motive to harass the respondents.

The applicant has made false and misleading statements, Desai said. He supported the impugned orders passed by the Metropolitan Magistrate as well as the Sessions Judge in a revision application.

Desai submitted that MCGM was the owner of the said plots (216 and 216A) situated at Dr. Annie Basant Road, Lower Parel Division, Worli, Mumbai and the Company acquired the property from one Rhone Poluc (India) Limited which subsequently merged into Nicholas Piramal India Limited.

Plot No.216-A was mortgaged in favour of Canara Bank and the premises including three theatres were put up for sale by an auction by the Debt Recovery Tribunal and this was purchased jointly by the respondent Companies. Thereafter, the lease of Plot No.216-A was also transferred in the name of the Companies. Then, the existing theatres came to be demolished and construction commenced in Plot No.216-A on sanction of Intimation of Disapproval granted by MCGM, which was followed by a Commencement Certificate.

Desai stated that since the total built up area to be constructed is less than 20000 sq. mtrs. as per the approved plan, no environmental clearance was required as per the Environment Impact Assessment Notification 2006.

Both parties relied on the Supreme Court's judgment in A.R. Antulay v. Ramdas Sriniwas Nayak & Anr.

Judgment

Court observed-

"In the light of the settled position of law and the provisions contained in the Environment (Protection) Act, 1986 which is a special enactment, I do not wish to delve into the contention of the learned counsel for the Applicant that Section 154 comprised a pre-cognizance stage and when the police proceed to investigate under Section 154 of the Code of Criminal Procedure, the cognizance stage would come at the stage of Section 173 since there is a fetter created in taking cognizance of an offence without the modality set out in Section 19 of the Environment (Protection) Act."

Dismissing the application, Court said-

"The contention of the Applicant that he is a private person and is at liberty to file FIR with the police disclosing cognizable offence by the accused under Section 15 of the Environment (Protection) Act is without any merit and substance."

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