Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
% Date of decision: 22 September, 2014
+ LPA No.547/2014
THE HARYANA STATE ENVIRONMENTAL IMPACT
ASSESSMENT AUTHORITY & ANR. ....Appellants
Through: Ms. Anubha Agarwal, Adv.
Versus
M/S MARUTI SUZUKI INDIA LTD. & ANR. ..... Respondents
Through: Mr. Arvind Nigam, Sr. Adv. with Ms.
Ruchi Agnihotri, Mr. Nikhil Rohatgi
& Ms. Shanta Chirravuri, Advs.
CORAM:-
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
th
1. This intra-court appeal impugns the order dated 26 May, 2014 of the
learned Single Judge of this Court in W.P.(C) No.2066/2014 filed by the
respondent no.1 / writ petitioner Maruti Suzuki India Ltd.
2. The respondent no.1 / writ petitioner, being on caveat, also appeared and
considering the nature of the controversy, need was not felt to issue notice to
the respondent no.2, the Ministry of Environment & Forests, Government of
India and we finally heard the counsel for the appellants and the senior counsel
for the respondent no.1 at the stage of admission.
LPA No.547/2014 Page 1 of 21
3. The respondent no.1 filed the writ petition from which this appeal arises,
pleading:
(a) that the respondent no.1 was carrying on activity of manufacturing
of automobiles at its factory at Gurgaon & Manesar and has a
Research and Development Facility and test track at Rohtak,
Haryana, within the jurisdiction of the appellant no.1 the Haryana
State Environmental Impact Assessment Authority;
(b) that the respondent no.1 had made numerous representations to the
respondent no.2, seeking clarification on the applicability of the
th
Environment Impact Assessment (EIA) Notification dated 14
September, 2006 issued by the respondent no.2, but to no avail;
(c) that the need for seeking such clarification arose because the
appellant no.1 had been taking a stand that prior environmental
clearance was necessary even for projects and activities not
th
enumerated in the Schedule to the EIA Notification dated 14
September, 2006, relying on a circular titled “Environment
Clearance to Special Economic Zone (SEZ) Projects – Reg.” dated
st
21 October, 2009 providing that all activities and projects,
whether or not listed or specified in the Schedule to the EIA
LPA No.547/2014 Page 2 of 21
th
Notification dated 14 September, 2006, if having built up area in
excess of 20000 sq. mtrs. would require prior environmental
clearance;
(d) that the respondent no.1 however, being of the opinion that since
its activities were not mentioned in the Schedule to the EIA
th
Notification dated 14 September, 2006, no prior environmental
clearance was required, had not taken the said clearance; and,
(e) that the appellant no.1 was however taking adverse view of the
respondent no.1 having not taken the prior environment clearance.
Accordingly, in the writ petition, the reliefs of, i) direction to the
respondent no.2 to act on the representations of the respondent no.1, and ii)
inter alia direction to the appellant no.1 not to proceed against the respondent
no.1 for having not obtained the prior environmental clearance, were claimed.
4. Notice of the writ petition was issued and a reply was filed by the
appellant no.1.
th
5. The writ petition was disposed of vide judgment dated 26 May, 2014,
recording the contentions,
(i) of the respondent no.1
LPA No.547/2014 Page 3 of 21
th
(a) that in accordance with the EIA Notification dated 14
September, 2006 only those projects and activities clearly
and specifically listed in the Schedule to the said
Notification require prior environment clearance and
projects and activities not listed in the Schedule were
exempt from the regulatory ambit of the said Notification;
(b) that though the activity of the respondent no.1 was
th
specifically included in the draft EIA Notification dated 15
September, 2005 but was omitted from the Schedule to the
th
Notification ultimately issued on 14 September, 2006; that
this omission clearly showed that the respondent no.1‟s
th
activity was not covered by the EIA Notification dated 14
September, 2006;
(c) that notwithstanding so, since the appellant no.1 was of the
view that the projects of the respondent no.1 require
environmental clearance, the respondent no.1, without
prejudice to its rights and contentions, had sought such
environmental clearance;
LPA No.547/2014 Page 4 of 21
(d) that the appellant no.1 was however seeking to prosecute the
respondent no.1 under Sections 15 and 19 of the
Environment (Protection) Act, 1986 for failure to obtain
prior environmental clearance;
(ii) of the respondent no.2 that the respondent no.2 had vide Circular
st
dated 21 October, 2009 (supra) clarified that in case the built up
area of the project or activity was in excess of 20000 sq. mtrs., then
irrespective of the nature of the project or activity, the project or
activity would require environmental clearance under Items 8(a)
th
and 8(b) of the Schedule to the EIA Notification dated 14
September, 2006 i.e. under the heading "Building and Construction
Projects" and "Township and Area Development Projects";
(iii) of the Additional Advocate General of the State of Haryana on
behalf of the appellant no.1 herein that though the appellant no.1
had in its reply to the writ petition raised preliminary objection to
the maintainability of the writ petition, yet it supported an
amicable resolution of the dispute and that if the legality and
th
validity of the EIA Notification dated 14 September, 2006 was
upheld and the respondent no.1 and its Directors undertook to
LPA No.547/2014 Page 5 of 21
obtain ex post facto environmental clearance and complied with
the terms and conditions stipulated for the environmental clearance
and undertook to obtain environmental clearance for all their future
projects in Haryana, the appellant no.1 would consider not
initiating any criminal action against the respondent no.1 or its
Board Members / officials for not procuring prior environmental
clearance with regard to the projects being executed by the
respondent no.1 in the State of Haryana;
st
(iv) of the respondent no.1 in rejoinder that the Circular dated 21
October, 2009 (supra) pertained to SEZ and did not in any way
support the view that all projects and activities having built up area
in excess of 20000 sq. mtrs., irrespective of the nature of the
project or activity, would require prior environmental clearance.
6. On the basis of the aforesaid contentions, the learned Single Judge found/
held / directed:-
th
(A) that the EIA Notification dated 14 September, 2006 applies to all
projects in excess of 20000 sq. mtrs., irrespective of the nature of
the project or activity; omission of some words / expressions,
which are superfluous, from the draft EIA Notification would not
LPA No.547/2014 Page 6 of 21
assist the respondent no.1; moreover deletion of words/expressions
from the draft Notification is not equivalent to deletion of
words/expressions from an existing Statute / Notification; similarly
internal notings of the Government officials cannot be a guide to
interpretation when the Notification is otherwise free from
ambiguity;
(B) that the respondent no.1 could not be said to have acted with mala
fide intent in not applying for prior environmental clearance as,
firstly, there was no authoritative judgment on the said issue and
secondly, upon the respondent no.1 being asked to seek
environmental clearance, it, without prejudice to its rights and
contentions immediately, even before filing the writ petition,
applied therefor;
(C) however the undertaking of the respondent no.1 to obtain ex post
facto environmental clearance and to comply with all the terms and
conditions stipulated therein was accepted and the respondent no.1
and its Board of Directors were ordered to be bound by the same;
LPA No.547/2014 Page 7 of 21
(D) accordingly, the appellant no.1 was directed to consider the
respondent no.1‟s application for grant of ex post facto
environmental clearance for its projects in Haryana;
nd
(E) that the appellant no.1 in its meeting held on 2 July, 2010 under
similar facts and circumstances had taken a decision not to
recommend prosecution;
(F) consequently, the appellant no.1 was directed not to initiate any
criminal action against the respondent no.1 and / or its Board
Members / officials; and,
(G) it was clarified that the order having been passed in the peculiar
facts and circumstances of the case, shall not be considered as a
precedent.
7. As the aforesaid would show, the order impugned in this appeal is in the
nature of a consent order. However this appeal along with an application for
condonation of 55 days delay in filing thereof has been filed.
8. The only grievance agitated by the counsel for the appellants before us is
with respect to the part of the order of the learned Single Judge directing the
LPA No.547/2014 Page 8 of 21
appellant no.1 not to initiate criminal action against the respondent no.1 and / or
its Board Members / officials.
9. Upon our pointing out to the counsel for the appellants that the said
direction of the learned Single Judge is based on the consent of the appellants,
the counsel for the appellants states that the said consent given by the advocate
appearing for the appellants before the learned Single Judge, was without
instructions and is contrary to the Statute i.e. Section 15 of the Environment
(Protection) Act which mandates criminal action and does not vest any
discretion. Reliance in this regard is placed on Union of India Vs. Mohanlal
Likumal Punjabi (2004) 3 SCC 628. It is further argued that the case
nd
considered by the appellant no.1 in its meeting on 2 July, 2010 and with
respect whereto decision not to launch criminal action was taken, was on
entirely different facts. It is yet further argued that in fact this Court did not
even have territorial jurisdiction to entertain the present petition and that against
the order impugned in this writ petition, appeal lies to the National Green
Tribunal (NGT) and the writ petition was thus in any case not maintainable
before this Court, notwithstanding the consent of the advocate of the appellants.
Reliance in this regard is placed on Kusum Ingots and Alloys Ltd. Vs. Union of
LPA No.547/2014 Page 9 of 21
India (2004) 6 SCC 254. It is yet further argued that the writ petition was also
not maintainable because the remedy of appeal before the NGT was available.
10. The senior counsel for the respondent no.1 has contended, i) that the
order impugned in this appeal is a consent / agreed order; ii) that the writ
petition was filed bona fide , seeking clarification from the respondent no.2
which is situated at Delhi; iii) that though in the Schedule to the draft
th
Notification dated 15 September, 2005 project or activity of automobile
th
manufacturing was mentioned but in the final Notification dated 14
September, 2006, the project or activity of automobile manufacturing units was
deleted and which led the respondent no.1 to believe that it was not required to
obtain prior environmental clearance; iv) that though an amendment to the
th st
Notification dated 14 September, 2006 was carried out on 1 December, 2009,
amending the activity listed in Item Nos.8(a) and 8(b) of the Schedule to the
th
Notification dated 14 September, 2006 but only by adding a note thereto and
the respondent no.1 again bona fide believed that the said note providing that
projects / building in excess of 20000 sq. mtrs. would be covered would relate
to projects or constructions relating to the activity at Item Nos.8(a) and 8(b) of
th
the Schedule to the Notification dated 14 September, 2006 only and which did
not include the activity of the respondent no.1 writ petitioner; v) that there was
LPA No.547/2014 Page 10 of 21
thus no certainty in this respect and no mala fides can be attributed to the
respondent no.1 for not obtaining the prior environmental clearance; and, vi)
that the contention of the appellant that the writ petition was not maintainable as
an appeal lies to the NGT is incorrect; the NGT (Western Zone) Bench in its
th
order dated 26 September, 2013 in appeal No.72/2013 titled Virani
Construction Company Vs. The State Level Environmental Impact
Assessment Committee (SEAC) , Maharashtra has held such an appeal to be
not maintainable.
11. As far as the contention of the counsel for the appellants, of the consent
given on behalf of the appellants before the learned Single Judge being without
instructions is concerned, we find the consent in the present case to have been
given by the Additional Advocate General for the State of Haryana who was
appearing on behalf of the appellants and who had also filed the reply to the
writ petition. The senior counsel for the respondent no.1/writ petitioner on
instructions states that in fact such consent was given by the Additional
Advocate General after obtaining telephonic instructions and for which purpose
the matter was passed over by the learned Single Judge. In our view, a consent
given by the Additional Advocate General cannot be so lightly withdrawn by
rd
the State. The appellant in this regard merely relies on a letter dated 23 June,
LPA No.547/2014 Page 11 of 21
2014 written by the appellant No.1 to the Advocate General of the State of
Haryana contending that the consent was wrongfully given by the Additional
Advocate General. There is nothing to indicate that such a letter was in fact
delivered to the Advocate General or what action was taken thereon. The
counsel for the appellant who has filed this appeal, on our enquiry informed that
she is an empanelled counsel for the State of Haryana. The Supreme Court in
Periyar & Pareekanni Rubbers Ltd. v. State of Kerala (1991) 4 SCC 195
though observing that any concession made by government pleader in the Trial
Court cannot bind the Government, nevertheless held that the same yardstick
cannot be applied when the Advocate General makes the statement across the
Bar since the Advocate General makes the statement with all responsibility. In
fact, there is no plea also in the memorandum of appeal, and no officer who
may have been instructing the Additional Advocate General in the case has
filed an affidavit, that there was no instruction for what was stated by the
Additional Advocate General before the learned Single Judge. No steps have
been taken to elicit the comments of the Additional Advocate General who
would have been in a position to inform on whose instructions he had made the
statement before the learned Single Judge. We are therefore unable to accept
the said contention and which we are constrained to observe, has been taken in
LPA No.547/2014 Page 12 of 21
a very casual manner and not befitting to the office of Additional Advocate
General.
12. The counsel for the appellant has not controverted that the order
impugned in this appeal, to the extent challenged, is a consent order. The first
question which thus arises is whether appeal against consent order is at all
maintainable.
13. Section 96 (3) of the Code of Civil Procedure, 1908 (CPC) bars an
appeal from a decree passed in Court with consent of the parties. However vide
Section 141 of CPC, the procedure provided therein with regard to a suit though
has been prescribed to be followed as far as applicable in all proceedings in any
Court of civil jurisdiction but explains that the word “proceedings” therein does
not include any proceeding under Article 226 of the Constitution of India.
However we find that the rule of „no appeal against consent order‟ though
codified in Section 96(3) of CPC, is essentially a rule of common law, having
its roots in the principle of estoppel. That being the position, we fail to see as to
why the same, notwithstanding the non-applicability of CPC to writ
proceedings, would not extend to writ proceedings. Of course, the same would
be subject to the exceptions as admissible to a plea of estoppel i.e. of there
being no estoppel against the statue and which leads to the other contention of
LPA No.547/2014 Page 13 of 21
the appellant i.e. of the statue not permitting the appellant no.1 to waive
prosecution.
14. As far as Mohanlal Likumal Punjabi (supra), relied upon by the counsel
for the appellants is concerned, the concession made by the counsel in that case
was on a point of interpretation of statutory provision and it was in the said
context held that a wrong interpretation of a statutory provision on the basis of
concession, cannot bind even the party on whose behalf concession was made
and has no precedential value. However the present case is not concerned with
any concession made by the counsel on an interpretation of statutory provision.
The counsel appearing for the appellant before the learned Single Judge on the
contrary, though highlighting that the appellant had raised preliminary
objections to the very maintainability of the writ petition, supported an
amicable resolution of the dispute. The respondent no.1, in the writ petition had
inter alia challenged the interpretation being placed by the appellants on the
th
provisions of the EIA Notification dated 14 September, 2006. The counsel for
the appellants proposed before the learned Single Judge that if the respondent
no.1 did not challenge the interpretation of the appellants and undertook to
obtain ex post facto environmental clearance, the appellant would not initiate
LPA No.547/2014 Page 14 of 21
criminal action. The judgment cited by the counsel for the appellants is thus not
applicable.
15. Section 15 of the Environment (Protection) Act to which reference in the
regard is made, or the Rules made or orders or directions issued thereunder do
not mandate the State or the appellants to prosecute the violators of the said
Act. All that Section 15 provides is that the said violators shall be punishable
with imprisonment for a term which may extend to five years or with fine
which may extend to one lakh rupees or with both; it also provides for further
fine and imprisonment for continued violations. Section 16 of the Act provides
that where the offence is committed by a company, every person who at the
relevant time was directly in charge of and responsible to the company as well
as the company shall be deemed to be guilty. The proviso thereto carves out an
exception, on proof inter alia of exercise of all due diligence to prevent the
commission of the offence. Section 19 of the Act titled “Cognizance of
Offences” inter alia provides for the Court to take cognizance only on a
complaint made by the Central Government or by any authority or officer
authorised by that Government. The same also does not mandate the Central
Government or its delegatee to file such complaint. Notice may also be taken of
Section 24(2) of the Act which provides that where any act or omission
LPA No.547/2014 Page 15 of 21
constitutes an offence punishable thereunder and also under any other statute,
then the offender shall be liable to be punished under the other statute and not
under the Environment (Protection) Act. We do not find anything in the Rules
framed under the Act also mandating the filing of the complaint of any offence
committed under the Act.
16. We are thus unable to comprehend the argument of the counsel for the
appellants that the consent earlier given on behalf of the appellant no.1, of not
prosecuting the respondent no.1, is contrary to the statute. The counsel for the
appellants has failed to elaborate on the said aspect.
17. Else, the decision to initiate a prosecution has long been regarded as a
classic discretionary function; though of course such discretion has to be
exercised bona fide and within well-defined parameters. The Constitution
Bench of the Supreme Court also in Sheonandan Paswan Vs. State of Bihar
(1987) 1 SCC 288, in relation to withdrawal of prosecution, held that the Court
could interfere in the said executive function only upon being satisfied that such
withdrawal was mala fide or motivated by improper considerations. The same is
again indicative of, whether, when and against whom to initiate prosecution
being quintessential example of governmental discretion. Similarly in
Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 also,
LPA No.547/2014 Page 16 of 21
with respect to the sanction required under the Prevention of Corruption Act,
1947 for prosecution, it was held that the concerned Government has the right
to consider the facts of each case and to decide whether the public servant is to
be prosecuted or not. A useful discussion on the subject can also be found in the
judgment of the Full Bench of the Bombay High Court in Abasaheb Yadav
Honmane Vs. The State of Maharashtra MANU/MH/0218/2008, also
concerned with the power of withdrawal of prosecution and where the Full
Bench speaking through Chief Justice Swatanter Kumar (as his Lordship then
was) also observed that the scheme of the Code of Criminal Procedure, 1973
vests a Public Prosecutor with the power to withdraw from prosecution of all or
any of the accused involved in any crime including serious crimes and of
consequential acquittal of the accused without trial. Thus, we are unable to
interpret Sections 15 and 19 of the Environment (Protection) Act as preventing
the appellant from giving the consent from which it is now purporting to
renege.
18. Rather we find the stand taken by the Additional Advocate General
before the learned Single Judge to be a very fair and a correct one. It appears
that the State of Haryana at that time was more interested in the Notification
th
dated 14 September, 2006 as interpreted and enforced by it, being not
LPA No.547/2014 Page 17 of 21
challenged and the dispute being amicably settled. It is for this reason only that
even though the respondent no.1 / writ petitioner without prejudice to its rights
and contentions had agreed to apply for and obtain ex post facto environmental
clearance, the learned Single Judge in accordance with the settlement proposed
by the learned Additional Advocate General proceeded to render a judicial
finding on the challenge by the respondent no.1 / writ petitioner to the
interpretation of the Notification though without any detailed discussion.
19. We are also of the view that no case for allowing the appellant to
withdraw the consent given before the learned Single Judge is made out, for the
reason that the respondent no.1 / writ petitioner also acted on the said consent.
Though the respondent no.1 / writ petitioner, even prior to filing the writ
petition and without prejudice to its rights and contentions had applied for ex
post facto environmental clearance but the respondent no.1 / writ petitioner in
light of the consent given by the advocate for the appellants changed its position
by not pressing its challenge to the interpretation by the appellants of the
th
Notification dated 14 September, 2006. As aforesaid, though the learned
Single Judge, by a judicial declaration has negated the challenge raising which
the writ petition was filed but merely to comply with the condition on which the
consent was given by the advocate for the appellant. There is nothing to show
LPA No.547/2014 Page 18 of 21
that the respondent no.1 / writ petitioner pressed the challenge. If the challenge
had been pressed and arguments on that been made, the same would have found
mention in the order and which is quiet in that respect. The respondent no.1 /
writ petitioner having changed its position and by which change the appellant
has also benefited, the appellant now cannot be permitted to withdraw the same.
20. We may further add that the challenge, making which the writ petition
was filed, cannot be said to be totally bogus. It is not as if the writ petition was
dismissed in limine . Notice of the writ petition was issued and reply was filed
by the appellant. It was only at the stage of hearing that the writ petition was
disposed of in terms of the consent order.
21. It cannot also be lost sight of that the appellants even before us admit
nd
having in the meeting held on 2 July, 2010 taken a decision not to launch
prosecution against another violator of the provisions of the Environment
(Protection) Act. It matters not whether the grounds for doing so were different
from the facts of the present case. The said conduct of appellant no.1 belies the
argument raised before us of that the consent given by the Additional Advocate
General appearing for the appellants before the learned Single Judge could not
have been given being contrary to law.
LPA No.547/2014 Page 19 of 21
22. As far as the argument urged by the counsel for the appellants of this
Court not having territorial jurisdiction to entertain the writ petition and the
order inter alia impugned in the writ petition being appealable before NGT, is
concerned, though the appellants undoubtedly in the reply filed to the writ
petition had taken the said plea but did not press the same at the time of hearing.
Counsels invariably, during the hearing do not press / urge all that is pleaded.
Whatever plea is not argued, is deemed to have been waived / given up. Rather
the Additional Advocate General appearing on behalf of appellants before the
learned Single Judge adopted a conciliatory approach and which we have herein
above held, he was entitled to and which approach we have found to be apposite
to the dispute. The objection to the territorial jurisdiction and to the
maintainability of the writ petition was thus clearly waived / given up. Also, it
was not a case of inherent lack of territorial jurisdiction of this Court. The main
relief claimed in the writ petition was of mandamus to the respondent no.2
herein situated within the territorial jurisdiction of this Court to act on the
representation of the respondent no.1/writ petitioner. Also the rule of not
entertaining a petition under Article 226 when alternative remedy is available is
not an absolute but discretionary one. Thus it cannot be said the learned Single
Judge then did not have the jurisdiction to act on the consent of the parties and
LPA No.547/2014 Page 20 of 21
to dispose of the petition in terms thereof. We fail to see as to how Kusum
Ingots and Alloys Ltd. Vs. Union of India (2004) 6 SCC 254 assists the
appellants. All that has been held in the said judgment is that a writ Court may
refuse to exercise the jurisdiction if issue raised in the writ petition can be
adjudicated more conveniently by another High Court i.e. if the High Court
which is approached feels that it is not the forum conveniens .
23. We thus do not find any merit in the appeal which is dismissed. We
refrain from imposing any costs on the appellants and its officers who have
filed this appeal in the hope that the appellants will not press the matter further
which appears to being pursued to satisfy the ego of some officers of the
appellants.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
SEPTEMBER 22, 2014
„gsr‟
LPA No.547/2014 Page 21 of 21
nd
% Date of decision: 22 September, 2014
+ LPA No.547/2014
THE HARYANA STATE ENVIRONMENTAL IMPACT
ASSESSMENT AUTHORITY & ANR. ....Appellants
Through: Ms. Anubha Agarwal, Adv.
Versus
M/S MARUTI SUZUKI INDIA LTD. & ANR. ..... Respondents
Through: Mr. Arvind Nigam, Sr. Adv. with Ms.
Ruchi Agnihotri, Mr. Nikhil Rohatgi
& Ms. Shanta Chirravuri, Advs.
CORAM:-
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
th
1. This intra-court appeal impugns the order dated 26 May, 2014 of the
learned Single Judge of this Court in W.P.(C) No.2066/2014 filed by the
respondent no.1 / writ petitioner Maruti Suzuki India Ltd.
2. The respondent no.1 / writ petitioner, being on caveat, also appeared and
considering the nature of the controversy, need was not felt to issue notice to
the respondent no.2, the Ministry of Environment & Forests, Government of
India and we finally heard the counsel for the appellants and the senior counsel
for the respondent no.1 at the stage of admission.
LPA No.547/2014 Page 1 of 21
3. The respondent no.1 filed the writ petition from which this appeal arises,
pleading:
(a) that the respondent no.1 was carrying on activity of manufacturing
of automobiles at its factory at Gurgaon & Manesar and has a
Research and Development Facility and test track at Rohtak,
Haryana, within the jurisdiction of the appellant no.1 the Haryana
State Environmental Impact Assessment Authority;
(b) that the respondent no.1 had made numerous representations to the
respondent no.2, seeking clarification on the applicability of the
th
Environment Impact Assessment (EIA) Notification dated 14
September, 2006 issued by the respondent no.2, but to no avail;
(c) that the need for seeking such clarification arose because the
appellant no.1 had been taking a stand that prior environmental
clearance was necessary even for projects and activities not
th
enumerated in the Schedule to the EIA Notification dated 14
September, 2006, relying on a circular titled “Environment
Clearance to Special Economic Zone (SEZ) Projects – Reg.” dated
st
21 October, 2009 providing that all activities and projects,
whether or not listed or specified in the Schedule to the EIA
LPA No.547/2014 Page 2 of 21
th
Notification dated 14 September, 2006, if having built up area in
excess of 20000 sq. mtrs. would require prior environmental
clearance;
(d) that the respondent no.1 however, being of the opinion that since
its activities were not mentioned in the Schedule to the EIA
th
Notification dated 14 September, 2006, no prior environmental
clearance was required, had not taken the said clearance; and,
(e) that the appellant no.1 was however taking adverse view of the
respondent no.1 having not taken the prior environment clearance.
Accordingly, in the writ petition, the reliefs of, i) direction to the
respondent no.2 to act on the representations of the respondent no.1, and ii)
inter alia direction to the appellant no.1 not to proceed against the respondent
no.1 for having not obtained the prior environmental clearance, were claimed.
4. Notice of the writ petition was issued and a reply was filed by the
appellant no.1.
th
5. The writ petition was disposed of vide judgment dated 26 May, 2014,
recording the contentions,
(i) of the respondent no.1
LPA No.547/2014 Page 3 of 21
th
(a) that in accordance with the EIA Notification dated 14
September, 2006 only those projects and activities clearly
and specifically listed in the Schedule to the said
Notification require prior environment clearance and
projects and activities not listed in the Schedule were
exempt from the regulatory ambit of the said Notification;
(b) that though the activity of the respondent no.1 was
th
specifically included in the draft EIA Notification dated 15
September, 2005 but was omitted from the Schedule to the
th
Notification ultimately issued on 14 September, 2006; that
this omission clearly showed that the respondent no.1‟s
th
activity was not covered by the EIA Notification dated 14
September, 2006;
(c) that notwithstanding so, since the appellant no.1 was of the
view that the projects of the respondent no.1 require
environmental clearance, the respondent no.1, without
prejudice to its rights and contentions, had sought such
environmental clearance;
LPA No.547/2014 Page 4 of 21
(d) that the appellant no.1 was however seeking to prosecute the
respondent no.1 under Sections 15 and 19 of the
Environment (Protection) Act, 1986 for failure to obtain
prior environmental clearance;
(ii) of the respondent no.2 that the respondent no.2 had vide Circular
st
dated 21 October, 2009 (supra) clarified that in case the built up
area of the project or activity was in excess of 20000 sq. mtrs., then
irrespective of the nature of the project or activity, the project or
activity would require environmental clearance under Items 8(a)
th
and 8(b) of the Schedule to the EIA Notification dated 14
September, 2006 i.e. under the heading "Building and Construction
Projects" and "Township and Area Development Projects";
(iii) of the Additional Advocate General of the State of Haryana on
behalf of the appellant no.1 herein that though the appellant no.1
had in its reply to the writ petition raised preliminary objection to
the maintainability of the writ petition, yet it supported an
amicable resolution of the dispute and that if the legality and
th
validity of the EIA Notification dated 14 September, 2006 was
upheld and the respondent no.1 and its Directors undertook to
LPA No.547/2014 Page 5 of 21
obtain ex post facto environmental clearance and complied with
the terms and conditions stipulated for the environmental clearance
and undertook to obtain environmental clearance for all their future
projects in Haryana, the appellant no.1 would consider not
initiating any criminal action against the respondent no.1 or its
Board Members / officials for not procuring prior environmental
clearance with regard to the projects being executed by the
respondent no.1 in the State of Haryana;
st
(iv) of the respondent no.1 in rejoinder that the Circular dated 21
October, 2009 (supra) pertained to SEZ and did not in any way
support the view that all projects and activities having built up area
in excess of 20000 sq. mtrs., irrespective of the nature of the
project or activity, would require prior environmental clearance.
6. On the basis of the aforesaid contentions, the learned Single Judge found/
held / directed:-
th
(A) that the EIA Notification dated 14 September, 2006 applies to all
projects in excess of 20000 sq. mtrs., irrespective of the nature of
the project or activity; omission of some words / expressions,
which are superfluous, from the draft EIA Notification would not
LPA No.547/2014 Page 6 of 21
assist the respondent no.1; moreover deletion of words/expressions
from the draft Notification is not equivalent to deletion of
words/expressions from an existing Statute / Notification; similarly
internal notings of the Government officials cannot be a guide to
interpretation when the Notification is otherwise free from
ambiguity;
(B) that the respondent no.1 could not be said to have acted with mala
fide intent in not applying for prior environmental clearance as,
firstly, there was no authoritative judgment on the said issue and
secondly, upon the respondent no.1 being asked to seek
environmental clearance, it, without prejudice to its rights and
contentions immediately, even before filing the writ petition,
applied therefor;
(C) however the undertaking of the respondent no.1 to obtain ex post
facto environmental clearance and to comply with all the terms and
conditions stipulated therein was accepted and the respondent no.1
and its Board of Directors were ordered to be bound by the same;
LPA No.547/2014 Page 7 of 21
(D) accordingly, the appellant no.1 was directed to consider the
respondent no.1‟s application for grant of ex post facto
environmental clearance for its projects in Haryana;
nd
(E) that the appellant no.1 in its meeting held on 2 July, 2010 under
similar facts and circumstances had taken a decision not to
recommend prosecution;
(F) consequently, the appellant no.1 was directed not to initiate any
criminal action against the respondent no.1 and / or its Board
Members / officials; and,
(G) it was clarified that the order having been passed in the peculiar
facts and circumstances of the case, shall not be considered as a
precedent.
7. As the aforesaid would show, the order impugned in this appeal is in the
nature of a consent order. However this appeal along with an application for
condonation of 55 days delay in filing thereof has been filed.
8. The only grievance agitated by the counsel for the appellants before us is
with respect to the part of the order of the learned Single Judge directing the
LPA No.547/2014 Page 8 of 21
appellant no.1 not to initiate criminal action against the respondent no.1 and / or
its Board Members / officials.
9. Upon our pointing out to the counsel for the appellants that the said
direction of the learned Single Judge is based on the consent of the appellants,
the counsel for the appellants states that the said consent given by the advocate
appearing for the appellants before the learned Single Judge, was without
instructions and is contrary to the Statute i.e. Section 15 of the Environment
(Protection) Act which mandates criminal action and does not vest any
discretion. Reliance in this regard is placed on Union of India Vs. Mohanlal
Likumal Punjabi (2004) 3 SCC 628. It is further argued that the case
nd
considered by the appellant no.1 in its meeting on 2 July, 2010 and with
respect whereto decision not to launch criminal action was taken, was on
entirely different facts. It is yet further argued that in fact this Court did not
even have territorial jurisdiction to entertain the present petition and that against
the order impugned in this writ petition, appeal lies to the National Green
Tribunal (NGT) and the writ petition was thus in any case not maintainable
before this Court, notwithstanding the consent of the advocate of the appellants.
Reliance in this regard is placed on Kusum Ingots and Alloys Ltd. Vs. Union of
LPA No.547/2014 Page 9 of 21
India (2004) 6 SCC 254. It is yet further argued that the writ petition was also
not maintainable because the remedy of appeal before the NGT was available.
10. The senior counsel for the respondent no.1 has contended, i) that the
order impugned in this appeal is a consent / agreed order; ii) that the writ
petition was filed bona fide , seeking clarification from the respondent no.2
which is situated at Delhi; iii) that though in the Schedule to the draft
th
Notification dated 15 September, 2005 project or activity of automobile
th
manufacturing was mentioned but in the final Notification dated 14
September, 2006, the project or activity of automobile manufacturing units was
deleted and which led the respondent no.1 to believe that it was not required to
obtain prior environmental clearance; iv) that though an amendment to the
th st
Notification dated 14 September, 2006 was carried out on 1 December, 2009,
amending the activity listed in Item Nos.8(a) and 8(b) of the Schedule to the
th
Notification dated 14 September, 2006 but only by adding a note thereto and
the respondent no.1 again bona fide believed that the said note providing that
projects / building in excess of 20000 sq. mtrs. would be covered would relate
to projects or constructions relating to the activity at Item Nos.8(a) and 8(b) of
th
the Schedule to the Notification dated 14 September, 2006 only and which did
not include the activity of the respondent no.1 writ petitioner; v) that there was
LPA No.547/2014 Page 10 of 21
thus no certainty in this respect and no mala fides can be attributed to the
respondent no.1 for not obtaining the prior environmental clearance; and, vi)
that the contention of the appellant that the writ petition was not maintainable as
an appeal lies to the NGT is incorrect; the NGT (Western Zone) Bench in its
th
order dated 26 September, 2013 in appeal No.72/2013 titled Virani
Construction Company Vs. The State Level Environmental Impact
Assessment Committee (SEAC) , Maharashtra has held such an appeal to be
not maintainable.
11. As far as the contention of the counsel for the appellants, of the consent
given on behalf of the appellants before the learned Single Judge being without
instructions is concerned, we find the consent in the present case to have been
given by the Additional Advocate General for the State of Haryana who was
appearing on behalf of the appellants and who had also filed the reply to the
writ petition. The senior counsel for the respondent no.1/writ petitioner on
instructions states that in fact such consent was given by the Additional
Advocate General after obtaining telephonic instructions and for which purpose
the matter was passed over by the learned Single Judge. In our view, a consent
given by the Additional Advocate General cannot be so lightly withdrawn by
rd
the State. The appellant in this regard merely relies on a letter dated 23 June,
LPA No.547/2014 Page 11 of 21
2014 written by the appellant No.1 to the Advocate General of the State of
Haryana contending that the consent was wrongfully given by the Additional
Advocate General. There is nothing to indicate that such a letter was in fact
delivered to the Advocate General or what action was taken thereon. The
counsel for the appellant who has filed this appeal, on our enquiry informed that
she is an empanelled counsel for the State of Haryana. The Supreme Court in
Periyar & Pareekanni Rubbers Ltd. v. State of Kerala (1991) 4 SCC 195
though observing that any concession made by government pleader in the Trial
Court cannot bind the Government, nevertheless held that the same yardstick
cannot be applied when the Advocate General makes the statement across the
Bar since the Advocate General makes the statement with all responsibility. In
fact, there is no plea also in the memorandum of appeal, and no officer who
may have been instructing the Additional Advocate General in the case has
filed an affidavit, that there was no instruction for what was stated by the
Additional Advocate General before the learned Single Judge. No steps have
been taken to elicit the comments of the Additional Advocate General who
would have been in a position to inform on whose instructions he had made the
statement before the learned Single Judge. We are therefore unable to accept
the said contention and which we are constrained to observe, has been taken in
LPA No.547/2014 Page 12 of 21
a very casual manner and not befitting to the office of Additional Advocate
General.
12. The counsel for the appellant has not controverted that the order
impugned in this appeal, to the extent challenged, is a consent order. The first
question which thus arises is whether appeal against consent order is at all
maintainable.
13. Section 96 (3) of the Code of Civil Procedure, 1908 (CPC) bars an
appeal from a decree passed in Court with consent of the parties. However vide
Section 141 of CPC, the procedure provided therein with regard to a suit though
has been prescribed to be followed as far as applicable in all proceedings in any
Court of civil jurisdiction but explains that the word “proceedings” therein does
not include any proceeding under Article 226 of the Constitution of India.
However we find that the rule of „no appeal against consent order‟ though
codified in Section 96(3) of CPC, is essentially a rule of common law, having
its roots in the principle of estoppel. That being the position, we fail to see as to
why the same, notwithstanding the non-applicability of CPC to writ
proceedings, would not extend to writ proceedings. Of course, the same would
be subject to the exceptions as admissible to a plea of estoppel i.e. of there
being no estoppel against the statue and which leads to the other contention of
LPA No.547/2014 Page 13 of 21
the appellant i.e. of the statue not permitting the appellant no.1 to waive
prosecution.
14. As far as Mohanlal Likumal Punjabi (supra), relied upon by the counsel
for the appellants is concerned, the concession made by the counsel in that case
was on a point of interpretation of statutory provision and it was in the said
context held that a wrong interpretation of a statutory provision on the basis of
concession, cannot bind even the party on whose behalf concession was made
and has no precedential value. However the present case is not concerned with
any concession made by the counsel on an interpretation of statutory provision.
The counsel appearing for the appellant before the learned Single Judge on the
contrary, though highlighting that the appellant had raised preliminary
objections to the very maintainability of the writ petition, supported an
amicable resolution of the dispute. The respondent no.1, in the writ petition had
inter alia challenged the interpretation being placed by the appellants on the
th
provisions of the EIA Notification dated 14 September, 2006. The counsel for
the appellants proposed before the learned Single Judge that if the respondent
no.1 did not challenge the interpretation of the appellants and undertook to
obtain ex post facto environmental clearance, the appellant would not initiate
LPA No.547/2014 Page 14 of 21
criminal action. The judgment cited by the counsel for the appellants is thus not
applicable.
15. Section 15 of the Environment (Protection) Act to which reference in the
regard is made, or the Rules made or orders or directions issued thereunder do
not mandate the State or the appellants to prosecute the violators of the said
Act. All that Section 15 provides is that the said violators shall be punishable
with imprisonment for a term which may extend to five years or with fine
which may extend to one lakh rupees or with both; it also provides for further
fine and imprisonment for continued violations. Section 16 of the Act provides
that where the offence is committed by a company, every person who at the
relevant time was directly in charge of and responsible to the company as well
as the company shall be deemed to be guilty. The proviso thereto carves out an
exception, on proof inter alia of exercise of all due diligence to prevent the
commission of the offence. Section 19 of the Act titled “Cognizance of
Offences” inter alia provides for the Court to take cognizance only on a
complaint made by the Central Government or by any authority or officer
authorised by that Government. The same also does not mandate the Central
Government or its delegatee to file such complaint. Notice may also be taken of
Section 24(2) of the Act which provides that where any act or omission
LPA No.547/2014 Page 15 of 21
constitutes an offence punishable thereunder and also under any other statute,
then the offender shall be liable to be punished under the other statute and not
under the Environment (Protection) Act. We do not find anything in the Rules
framed under the Act also mandating the filing of the complaint of any offence
committed under the Act.
16. We are thus unable to comprehend the argument of the counsel for the
appellants that the consent earlier given on behalf of the appellant no.1, of not
prosecuting the respondent no.1, is contrary to the statute. The counsel for the
appellants has failed to elaborate on the said aspect.
17. Else, the decision to initiate a prosecution has long been regarded as a
classic discretionary function; though of course such discretion has to be
exercised bona fide and within well-defined parameters. The Constitution
Bench of the Supreme Court also in Sheonandan Paswan Vs. State of Bihar
(1987) 1 SCC 288, in relation to withdrawal of prosecution, held that the Court
could interfere in the said executive function only upon being satisfied that such
withdrawal was mala fide or motivated by improper considerations. The same is
again indicative of, whether, when and against whom to initiate prosecution
being quintessential example of governmental discretion. Similarly in
Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622 also,
LPA No.547/2014 Page 16 of 21
with respect to the sanction required under the Prevention of Corruption Act,
1947 for prosecution, it was held that the concerned Government has the right
to consider the facts of each case and to decide whether the public servant is to
be prosecuted or not. A useful discussion on the subject can also be found in the
judgment of the Full Bench of the Bombay High Court in Abasaheb Yadav
Honmane Vs. The State of Maharashtra MANU/MH/0218/2008, also
concerned with the power of withdrawal of prosecution and where the Full
Bench speaking through Chief Justice Swatanter Kumar (as his Lordship then
was) also observed that the scheme of the Code of Criminal Procedure, 1973
vests a Public Prosecutor with the power to withdraw from prosecution of all or
any of the accused involved in any crime including serious crimes and of
consequential acquittal of the accused without trial. Thus, we are unable to
interpret Sections 15 and 19 of the Environment (Protection) Act as preventing
the appellant from giving the consent from which it is now purporting to
renege.
18. Rather we find the stand taken by the Additional Advocate General
before the learned Single Judge to be a very fair and a correct one. It appears
that the State of Haryana at that time was more interested in the Notification
th
dated 14 September, 2006 as interpreted and enforced by it, being not
LPA No.547/2014 Page 17 of 21
challenged and the dispute being amicably settled. It is for this reason only that
even though the respondent no.1 / writ petitioner without prejudice to its rights
and contentions had agreed to apply for and obtain ex post facto environmental
clearance, the learned Single Judge in accordance with the settlement proposed
by the learned Additional Advocate General proceeded to render a judicial
finding on the challenge by the respondent no.1 / writ petitioner to the
interpretation of the Notification though without any detailed discussion.
19. We are also of the view that no case for allowing the appellant to
withdraw the consent given before the learned Single Judge is made out, for the
reason that the respondent no.1 / writ petitioner also acted on the said consent.
Though the respondent no.1 / writ petitioner, even prior to filing the writ
petition and without prejudice to its rights and contentions had applied for ex
post facto environmental clearance but the respondent no.1 / writ petitioner in
light of the consent given by the advocate for the appellants changed its position
by not pressing its challenge to the interpretation by the appellants of the
th
Notification dated 14 September, 2006. As aforesaid, though the learned
Single Judge, by a judicial declaration has negated the challenge raising which
the writ petition was filed but merely to comply with the condition on which the
consent was given by the advocate for the appellant. There is nothing to show
LPA No.547/2014 Page 18 of 21
that the respondent no.1 / writ petitioner pressed the challenge. If the challenge
had been pressed and arguments on that been made, the same would have found
mention in the order and which is quiet in that respect. The respondent no.1 /
writ petitioner having changed its position and by which change the appellant
has also benefited, the appellant now cannot be permitted to withdraw the same.
20. We may further add that the challenge, making which the writ petition
was filed, cannot be said to be totally bogus. It is not as if the writ petition was
dismissed in limine . Notice of the writ petition was issued and reply was filed
by the appellant. It was only at the stage of hearing that the writ petition was
disposed of in terms of the consent order.
21. It cannot also be lost sight of that the appellants even before us admit
nd
having in the meeting held on 2 July, 2010 taken a decision not to launch
prosecution against another violator of the provisions of the Environment
(Protection) Act. It matters not whether the grounds for doing so were different
from the facts of the present case. The said conduct of appellant no.1 belies the
argument raised before us of that the consent given by the Additional Advocate
General appearing for the appellants before the learned Single Judge could not
have been given being contrary to law.
LPA No.547/2014 Page 19 of 21
22. As far as the argument urged by the counsel for the appellants of this
Court not having territorial jurisdiction to entertain the writ petition and the
order inter alia impugned in the writ petition being appealable before NGT, is
concerned, though the appellants undoubtedly in the reply filed to the writ
petition had taken the said plea but did not press the same at the time of hearing.
Counsels invariably, during the hearing do not press / urge all that is pleaded.
Whatever plea is not argued, is deemed to have been waived / given up. Rather
the Additional Advocate General appearing on behalf of appellants before the
learned Single Judge adopted a conciliatory approach and which we have herein
above held, he was entitled to and which approach we have found to be apposite
to the dispute. The objection to the territorial jurisdiction and to the
maintainability of the writ petition was thus clearly waived / given up. Also, it
was not a case of inherent lack of territorial jurisdiction of this Court. The main
relief claimed in the writ petition was of mandamus to the respondent no.2
herein situated within the territorial jurisdiction of this Court to act on the
representation of the respondent no.1/writ petitioner. Also the rule of not
entertaining a petition under Article 226 when alternative remedy is available is
not an absolute but discretionary one. Thus it cannot be said the learned Single
Judge then did not have the jurisdiction to act on the consent of the parties and
LPA No.547/2014 Page 20 of 21
to dispose of the petition in terms thereof. We fail to see as to how Kusum
Ingots and Alloys Ltd. Vs. Union of India (2004) 6 SCC 254 assists the
appellants. All that has been held in the said judgment is that a writ Court may
refuse to exercise the jurisdiction if issue raised in the writ petition can be
adjudicated more conveniently by another High Court i.e. if the High Court
which is approached feels that it is not the forum conveniens .
23. We thus do not find any merit in the appeal which is dismissed. We
refrain from imposing any costs on the appellants and its officers who have
filed this appeal in the hope that the appellants will not press the matter further
which appears to being pursued to satisfy the ego of some officers of the
appellants.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
SEPTEMBER 22, 2014
„gsr‟
LPA No.547/2014 Page 21 of 21