JUDGMENT (Prayer: Petition filed under Section 482 of Cr.P.C.to call for the entire records in C.C.No.3249 of 2021 on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai and quash the same.) 1. This petition has been filed to quash the prosecution in CC.No.3249 of 2021 for the offence under Section 15 r/w 16 and 19(a) of the Environment (Protection) Act, 1986, pending on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai. 2. The crux of the allegations found in the complaint is as follows: 2.a. The 1st Accused is running a company in the name of M/s.TRIL Infopark Limited and is involved in the construction of IT Park. The 2nd Accused is the Executive Director and Chief Executive Officer of the 1st Accused Company and he is directly in charge and responsible to the 1st Accused Company. 2.b. In the course of the business, the 1st Accused company has undergone expansion and change in product mix at M/s.TRIL Info Park Limited for its IT park of more than 20,000 sq.metres. Environmental Impact Assessment Notification 2006 [EIA] issued by the Ministry of Environment and Forest, Government of India dated 14.09.2006, mandates that on and from the date of its publication, the required construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to its notification require a prior Environmental Clearance from the Central Government or the State level Environment Impact Assessment Authority. 2.c. It is the case of the complainant that the accused without any prior Environmental Clearance, contrary to the Notification dated 14.09.2006 made expansion. On 20.12.2014 the Complainant had inspected the Accused project and found that the accused has proposed to construct IT blocks in the area earmarked for the proposed hotel, residential complex and retail shop with separate STP and the construction was also under progress. The complainant has issued letter dated 23.12.2014 informed the accused to obtain Environmental Clearance for the change in the product mix. As the Environmental Clearance was not obtained, the Complainant had issued Show Cause Notice on 30.11.2019. In the reply to the Show Cause Notice, the Accused has stated that he had filed an Application for the Environmental Clearance for its proposed amendment on 27.11.2013. But the Environment Clearance is yet to be issued by State Environment Impact Assessment Authority (SEIAA). As the Environmental Clearance was not obtained, the Complainant had issued Show Cause Notice on 30.11.2019. In the reply to the Show Cause Notice, the Accused has stated that he had filed an Application for the Environmental Clearance for its proposed amendment on 27.11.2013. But the Environment Clearance is yet to be issued by State Environment Impact Assessment Authority (SEIAA). It is the case of the Complainant that the Accused ought not to have commenced construction activity prior to obtaining clearance from the State Environment Impact Assessment Authority. As accused violated the Notification, the complaint has been filed. 3. Mr.B. Kumar, learned Senior Counsel appearing for the Petitioner would contend that the Petitioner's company had entered into a joint venture with the Tamilnadu Industrial Development Corporation (TIDCO) to construct an IT Park called Ramanujam IT City in OMR, Taramani, Chennai. Originally total built up area to be constructed around 3,75,328 Sq.Mts. The Petitioner was granted environmental clearance on 08.04.2009 for the above construction. Thereafter, a decision was taken with TIDCO by the Petitioner for expansion of built up area. Accordingly, the Petitioner had filed a fresh application for the expanded built up area of 6,65,760 Sq.Mts. to State Environment Impact Assessment Authority, as per the Notification of the Central Government dated 14.09.2006. Despite such application no order was passed. Therefore, the Petitioner has filed an application before the National Green Tribunal (NGT), on which NGT has directed the Respondent to consider the Petitioner's Application for environmental clearance. Despite such Order, the said Application was not considered for more than four years by the SEIAA. Subsequently, on 19.06.2017 SEIAA had directed the Petitioner to approach the Central Government as per 2017 Notification. However, there was a change in law pursuant to 2018 Notification and SEIAA was empowered to process the Petitioner's application. Accordingly, the Petitioner has submitted the required details to the SEIAA. After four years of NGT Order, the Petitioner proposal was not taken up on the ground that the Petitioner had not applied in an online portal. Thereafter, Show Cause Notice was issued by the Respondent. However, the same was properly replied. The Petitioner's Application for clearance was also taken up by the SEIAA on 04.05.2021. State Committee imposed a cost of 8.58 Crores under the various heads towards fulfillment of social responsibilities. The above said payment was made. Thereafter, Show Cause Notice was issued by the Respondent. However, the same was properly replied. The Petitioner's Application for clearance was also taken up by the SEIAA on 04.05.2021. State Committee imposed a cost of 8.58 Crores under the various heads towards fulfillment of social responsibilities. The above said payment was made. Again on 30.09.2021 clearance was given as per the Notification dated 14.09.2006. Hence, the learned Senior Counsel appearing for the Petitioner submitted that since the Environmental Clearance was granted and sufficient remedial cost was also paid, the prosecution is nothing but abuse of process of law. As per the Notification dated 14.03.2017, if there is any violation, it can be regularised, if the governing laws of the State are complied with and Ecological damages are assessed and benefit arrived and appropriate cost are imposed. Hence it is his contention that initiation of the prosecution even after environmental clearance by the authorities is nothing but an harassment. Even in the circular dated 26.08.2020 of the Tamil Nadu Pollution Control Board makes it clear that once remedial measure is made and cost imposed and Environmental Clearance is issued, the prosecution is not warranted. Further it is his contention that compliant filed by the Regional Engineer is not maintainable in law. He is not a competent person under Section 19 of the Environmental (Protection) Act. Hence, submitted that as the huge amount of penalty of Rs.8.58 Crores has already been imposed, there cannot be second prosecution for the same violation. Learned Senior Counsel further submitted that Petitioner's fresh application was not taken up for orders for more than five years despite the NGT Order. Therefore, it is his contention that the complaint has been initiated with mala fide intention and the same is liable to be quashed. 4. In support of his contention the learned Senior Counsel placed reliance on the following judgments: 1. M/s.True Value Homes India Pvt.Ltd., and another vs. The Tamil Nadu Pollution Control Board. [Crl.O.P.No.7750 of 2021 Order dated 16.08.2021 High Court Madras] 2. Pahwa Plastics Pvt. Ltd., and another vs. Dastak NGO and others. [2022 SCC OnLine SC 362] In True Value Homes India Pvt. Ltd., case (supra) this Court quashed the similar complaint considering the delay caused by the Respondent in taking decision. The leaned Senior Counsel also placed Circulars of the Environmental Board and other aspects. 5. Pahwa Plastics Pvt. Ltd., and another vs. Dastak NGO and others. [2022 SCC OnLine SC 362] In True Value Homes India Pvt. Ltd., case (supra) this Court quashed the similar complaint considering the delay caused by the Respondent in taking decision. The leaned Senior Counsel also placed Circulars of the Environmental Board and other aspects. 5. Whereas the learned Advocate General Mr.R.Shunmugasundaram submitted that the complaint filed by the Regional Engineer is very well maintainable. The Notification is also provided for such prosecution. He further submitted that merely because Environmental Clearance is granted subsequently, it cannot be said that no prosecution is maintainable. The prosecution is mainly for the violation of the notification of the year 2006 and the environmental violation should be seriously viewed. When the statute provides prosecution for violation the prosecution cannot be quashed. Learned Advocate General further submitted that the Petitioner vide irs letter dated 22.08.2014 addressed to the Member Secretary, SEIAA, admitted that there was an expansion and change in product mix without any proper permission. 6. In support of his contention he placed reliance on the following judgments: 1. Rajneesh Aggarwal vs. Amit J. Bhalla [ (2001) 1 SCC 631 ] 2. Sushil Suri vs. Central Bureau of Investigation and another [ (2011) 5 SCC 708 ] 7. I have perused the entire materials. 8. It is not disputed in the Counter that the Petitioner has entered into a Joint Venture with TIDCO to construct an IT Park. Similarly it is not disputed in the counter that the Petitioner was obtained Environmental Clearance for built up area of 3,75,328 Sq.Mts.,as per the Notification dated 14.09.2006. Later, it appears that the Petitioner by their letter dated 09.10.2013 sought for an amended Environmental Clearance for the expanded built up area of 6,65,760 Sq.Mts. The SEIAA-TN vide its letter dated 23.10.2013 and 10.01.2014 had directed the Petitioner to produce Compliance Report from Ministry of Environment and Forest and Climate Change (MoEF&CC). These allegations are also not disputed in the counter filed by the Respondent. It is the further case of the Petitioner that on 21.4.2014 they have filed a fresh application for the expanded built up area of 6,65,760 Sq.Mts. along with the certified Compliance Report from MoEF&CC, explaining that the reasons for changes in built up area. These allegations are also not disputed in the counter filed by the Respondent. It is the further case of the Petitioner that on 21.4.2014 they have filed a fresh application for the expanded built up area of 6,65,760 Sq.Mts. along with the certified Compliance Report from MoEF&CC, explaining that the reasons for changes in built up area. Thereafter, on 12.11.2014 the SEIAA-TN had de-listed the petitioner's application citing an interim order passed by the National Green Tribunal on the ground that the files could not be processed until final judgment is passed by the NGT. 9. National Green Tribunal has passed order on 13.01.2015 directing the SEIAA-TN to consider the petitioner's application and pass suitable orders in accordance with law. Despite such order, it appears that no action has been taken and no order was passed by the Respondent. These allegations are not even denied in their counter. Again on 19.06.2017 SEIAA-TN had directed the Petitioner to submit the proposal to the MoEF&CC, Government of India, as per the notification dated 14.03.2017. Thereafter, there was a change in law in pursuant to the 2018 notification, wherein State SEIAA was empowered to process the Petitioner's application. The Notification of 2018 annexed in the typed set was also not disputed by the Respondent. 10. On a careful perusal of the Notification dated 08.03.2018 in respect of Category 'B' Projects appraisal and approval shall vest with the State or Union Territory level Expert Appraisal Committees and State or Union Territory Environment Impact Assessment Authorities in different States and Union Territories. Above notification empowered the State Government in respect of the category 'B' Projects to grant Environmental Clearance. This aspect is also not disputed. Pursuant to the change of notification, it appears that the Petitioner has submitted the required details to the State Environment Impact Assessment Authority (SEIAA). Thereafter, it appears that the Petitioner's proposal was not taken on the ground that the Petitioner had not applied in the online portal and SEIAA requested the Petitioner to apply through online. Therefore, the application filed by the Petitioner was kept pending and suddenly show cause notice was issued on 30.11.2019 and which was also replied. These facts are not disputed. The present complaint was filed on 04.05.2021. On the same day the Petitioner's application was taken up for clearance by the SEIAA. Therefore, the application filed by the Petitioner was kept pending and suddenly show cause notice was issued on 30.11.2019 and which was also replied. These facts are not disputed. The present complaint was filed on 04.05.2021. On the same day the Petitioner's application was taken up for clearance by the SEIAA. On 17.08.2021 cost of Rs.8.58 Crores imposed on the Petitioner by the State Committee. Thereafter clearance was given on 30.09.2021. The Order for Environmental Clearance dated 20.09.2021 when carefully seen it is also recorded that CMDA also given completion certificate on 02.01.2019 itself. 11. Considering the above aspects and total cost of Rs.8.58 Crores was imposed for remedial measure for environmental clearance and the same was paid, the Order recording the completion certificate by the CMDA shows that the statutory authorities have given permission for construction of the building. Admittedly, the applications for environmental clearance was pending with the State Committee from the year 2013 and finally environment clearance was given only on 30.09.2021 and proper remedial cost also imposed. The Circular dated 26.08.2020 issued by the Tamil Nadu Pollution Control Board in respect of Environmental Clearance violence cases it is stated held as follows: “(1) In case of Category B projects, all the violation cases shall be first appraised by the SEAC (State Environmental Appraisal Committees. If the findings of the SLAC are negative (are those constructed at a site which under paling are not permissible (CRZ, National Parks, Encloglos Sensitive Areas etc) and expansion has been done which cannot run sustainably under the compliance of Environmental norms with adequate Environmental safe guards), and closure of the project, then cognizance of offence action shall be taken against the project proponent by the TNPCB by invoking the powers vested under section 10 of the Environment (Protection) Act, 1968 by filling a case in the Judic Magistrate Court under Section 15 of the Environment (Protection) Act, 1980 (2) If the findings of the SEAC are affirmative (constructed at a site which under prevailing laws is permissible and expansion has been done which can run sustainably under compliance of environmental norms with adequate environmental safeguards), the SEAC may proceed to consider for granting Environmental Clearance by issuing TOR as per the procedure laid down in ELA Notification 2000. Further the SBAC shall issue a specific TOR per pars 13 15) of the notification dated 14.3.2017] for the project on assessment of ecological damage, remediation plan and natural and community resources augmentation plan. Based on the plan, the SEAC shall impose suitable conditions in the Environmental clearance. The project proponent shall subm Bank Guarantee equivalent to the amount of remediation plan and Natural and Community Resources Augmentation plan to TNPCB. This BG shall be deposited prior to the grant of EC. After successful implementation of action plan, the BG shall be released. In this case, the filing of case against the project proponent under the provisions of section 15 of the Environment (Protection) Act 1986, by the TNPCB does not arise.” 12. The very circular itself makes it clear that after remedial measures assessed and damages and remediation plan is taken and sufficient bank guarantee have been given and cost imposed, the filing of the case against the project opponent under Section 15 of the Environment (Protection) Act by the Tamil Nadu Pollution Control Board does not arise. The circular is of the year 2020. Admittedly, in this case, environmental clearance was given by the Respondent viz., The Tamil Nadu Pollution Control Board and they imposed cost of Rs.8.58 Crores under various heads towards social fulfillment of social responsibilities. The above payment said to have been made. Therefore, initiating the prosecution for mere violation once again even after imposed the cost is contrary to the own circular. 13. Admittedly, one of the Government Departments viz., TIDCO is involved in the construction of IT Park. Thereafter constructions have been completed and the completion certificate also issued by the CMDA in the year 2019. The application for environmental clearance for further expansion from the year 2014 kept pending and finally cleared in the year 2021, in the meanwhile filing the prosecution for mere violation, this Court is of the view that the same is nothing but an abuse of process of law. 14. In Pahwa Plastics Pvt. Ltd., and Another vs. Dastak NGO and Others [2022 SCC Online SC 362] the Honourable Apex Court in paragraphs 63 and 64 has 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. 14. In Pahwa Plastics Pvt. Ltd., and Another vs. Dastak NGO and Others [2022 SCC Online SC 362] the Honourable Apex Court in paragraphs 63 and 64 has 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. 64. The 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.” 15. Environmental Clearance also given assessing all the parameters and they also took note of the remedial measure and ecological damages and imposed a cost of Rs.8.58 Crores. The Government Corporation TIDCO is also one of the part to the agreement. The Tamil Nadu Pollution Control Board allowing the construction to be completed in entirety and sitting over the applications for clearance from the year 2014 onwards and prosecuting only leaving other Government Corporation is a clear case of abuse of process of law. 16. The Government Corporation TIDCO is also one of the part to the agreement. The Tamil Nadu Pollution Control Board allowing the construction to be completed in entirety and sitting over the applications for clearance from the year 2014 onwards and prosecuting only leaving other Government Corporation is a clear case of abuse of process of law. 16. Though the learned Advocate General cited the Honourable Supreme Court's case in Sushil Suri vs. Central Bureau of Investigation and another [ (2011) 5 SCC 708 ] wherein the Honourable Apex Court dismissed the appeal on the ground that merely because the amount in question was paid to the bank, there was no monetary loss to the Bank, the same is not the ground, since the materials indicated that there was conspiracy and forgery of several documents leading to the connection of the offences 420, 409, 468 and 471 of IPC. Only in such circumstances the Court declined to quash the proceedings. 17. In Rajneesh Aggarwal vs. Amit J.Bhalla [ (2001) 1 SCC 631 ] with regard to the Negotiable Instruments Act, wherein the quashment was sought on the ground that the entire amount involved was deposited with the Court. The Honourable Apex Court has held that though such payment may have some effect in the matter of awarding of sentence, does not absolve the accused of criminal liability. These facts in the above cases cannot be applied to the facts and circumstance of this case since the Respondent is aware that expansion is going on with the TIDCO, one of the Government Corporation for the construction of IT Park and slept over for many years and the application filed by the Petitioner for clearance, after several years, was accepted and cleared. Therefore in such situation, initiation of the prosecution, in view of this Court is invested with some motive. 18. It is also relevant to note that the complaint has been filed by the District Environmental Engineer, Tamil Nadu Pollution Control Board. In this regard, it is useful to refer Section 19 of the Environment (Protection) Act. Therefore in such situation, initiation of the prosecution, in view of this Court is invested with some motive. 18. It is also relevant to note that the complaint has been filed by the District Environmental Engineer, Tamil Nadu Pollution Control Board. In this regard, it is useful to refer Section 19 of the Environment (Protection) Act. The same reads follows: Section 19 in The Environment (Protection) Act, 1986: 19 Cognizance of offences:- 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.” 19. The above provision makes it very clear that complaint can be filed by the Central Government or any authority or officer authorised in this behalf by that Government, i.e., the Central Government. The Notification issued by the Central Government in this regard reads as follows: “OFFICERS AUTHORISED FOR TAKING COGNIZANCE OF OFFENCES NOTIFICATION S.O. 394(E).-In exercise of the powers conferred under clause (a) of section 19 of the Environment (Protection)Act, 1986 (29 of 1986). the Central Government hereby authorises the officers and authorities listed in column (2) of the Table hereto for the purpose of the said section with the jurisdiction mentioned against each of them in column (3) of that Table: TABLE Sl.No. Officer Jurisdiction (1) (2) (3) 1 Any Director, Joint Secretary. Adviser or Additional Secretary to the Government of India in the Department of Environment, Forests and Wildlife. Whole of India 2 The Chairman or Member-Secretary of the Central Pollution Control Board constituted under section 3 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974). Whole of India 3 The Government of the State (represented by the Secretary to the State Government in-charge) of environment. Whole of India 4 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 constituted under section 5 of the Air (Prevention and Control of Pollution) Act. 1981114 of 1981). Whole of India 4 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 constituted under section 5 of the Air (Prevention and Control of Pollution) Act. 1981114 of 1981). Whole of India 5 Collector Whole of Revenue District 6 Zonal Officers of the Central Pollution Control Board who have been delegated powers under sections 20,21.23 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) and section 24 of the Air (Prevention and Control of Pollution) Act. 1981 (14 of 1981). Area as laid down by the Central Government 7 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 Area as laid down by the State Board 8 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. Area as laid down by the State Board 9 Any Regional/Zonal Officers or a Director in charge of a Region/Zone of the Ganga Project down by the Ganga Project Directorate. Zonal/Regional area as laid down by the Ganga Project Directorate 10 Any Deputy Secretary, Director. Joint Secretary or Additional Secretary to the Government of India in the Ganga Project Directorate. Whole of the State in which the Ganga Action Plan is under implementation 11 Joint Secretary (Legal) in the Department of Environment.. Forests and Wildlife. Ministry of Environment & Forests. New Delhi - 110003 Whole of India 12 Chairman or Member Secretary of the Committee notified under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 in respect of Union Territories. Whole of Union Territory 13 Seed Inspector(s) Area as laid down by the respective tate Govt. in the notification issued under Clause 12 of the Seeds Controller 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.” 20. 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.” 20. On 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. 21. The complaint in this case has been filed by theTamil 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. However, as held earlier prosecution is not maintainable when the State Authority slept over the application and granted clearance later. 22. In the result, the Criminal Original Petition is allowed. Case in C.C.No.3249 of 2021 pending on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai, is quashed. Consequently, connected Miscellaneous Petitions are closed.