Offences under Environment Protection Act

1. (i) The notification   dated the 14th September, 2006 issued under sub-section (1) read with clause (v) of sub-section (2) of section (3) of the Environment (Protection) Act, 1986 and clause (d) of the sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986  mandates that  the construction of new projects  or activities listed in the Schedule to the said notification shall be undertaken only after prior environmental clearance from the concerned authorities.

(ii) While constructing IT3 building, the Owner was under obligation to obtain such environmental clearance because building and construction projects fall under category 8(a) of the Schedule. However,  environmental clearance was not obtained because Owner was under the impression that such clearance is not required as it is in Industrial zone and is having total area of less than 500 Hectors, there is no industry of category A & B in its complex; therefore it falls under category 7(c) of the Schedule to the EIA Notification, 2006.

(iii) Category 7(c) of the Schedule refers to Industrial Area, Special Economic Zone etc. Industrial Zone and Industrial area are not the one and same thing. Further, Government of India, vide its letter dated 30.09.2016 has clarified that Information Technology Park are covered for grant of Environmental Clearance if attracts the provisions given under item 8(a) (Building and Construction project)  and (b) of the Schedule to the EIA Notification, 2006. Therefore, now it is absolutely clear that Owner is under statutory obligation to obtain Environmental Clearance.   

(iv)   Non-compliance of provisions of Environmental Protection Act and the said Notification is an offence under section 15 of  Environment (Protection) Act, 1986 and  Section 15(1) provides imprisonment for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the contravention continues, with additional fine which may extend to five thousand rupees for every day during which such contravention continues after the conviction for the first such contravention.

(v)  Since Owner did not obtain environmental clearance, Pollution Control Board after giving notice to Owner, lodged a police case against Owner and its two officers invoking section 15 of the Act which is pending in Borivli Court. The next date is 31 December 2016 for recording plea.

(2) Pleading Guilty-

3 (i)So long as Owner does not obtain environmental clearance after disposal of the case, contravention of the Act shall continue and Owner and its officers may be liable to pay additional fine which may extend to five thousand rupees for every day during which such contravention continues as per section 15(1) of the Act.

(ii) Further, the fact that Owner has not yet applied for EC, may also prejudice the court in disposing of the case by imposing only fine.

(iii) It is not advisable to plead guilty at this stage without even obtaining EC for IT 3 building. The offence under section 15 of Environment (Protection) Act, 1986 is a continuous offence.

(iv) Continuous offences are those offenses which arises out of a failure to comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is complied with. Owner is not having environmental clearance from the concerned authority even today and its obligation to obtain environmental clearance is not done away with after pleading guilty and the case is closed after imposing fine only.

(v) Owner has not yet applied or taken steps for obtaining environmental clearance from the concerned authorities. If Owner fails to obtain environmental clearance within one year from the date of conviction after pleading guilty, Section 15(2) of  the Act shall also  come into force and then Owner and its officers will be liable for prosecution again for which imprisonment term may be up to seven years. Section 15(2) of the Act is as follows:

“15 (2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years.”

(vi) Thus, Owner will be taking the risk of inviting another criminal proceeding, if environmental clearance  is not obtained within one year from  the date of conviction and Pollution Control Board will be at liberty to file such criminal case again. Besides, Owner may have to pay additional fine at the rate of Rs.5000/- per day for the delay in obtaining EC for IT3. 

Relevant provisions/sections with regard to the application of doctrine of "double jeopardy".

Article 20(2) in The Constitution Of India 1949

“(2) No person shall be prosecuted and punished for the same offence more than once.”

Section 300(1) of the Cr.P.C says that a person once convicted or acquitted is not to be tried for same offence. It reads as follows:

"300. Person once convicted or acquitted not to be tried for same offence.- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof."

Section 26 of the General Clauses Act, 1897

"26. Provision as to offences punishable under two or more enactments.- Where an act or omission constitutes and offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence."

Section 71 of Indian Penal Code

"71. Limit of punishment of offence made up of several offences- Where anything which is an  offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of is offences, unless it be so expressly provided."

Note on Notice under section 353 B of MMC Act

1. (i) As per section 353(1), every Building which is 30 years old,  it is required to be examined by a structural engineer registered with the Corporation for the purpose of certifying that the building is fit for human habitation. This certificate is to be submitted within one year after expiry of thirty years and every 10 years thereafter or at any time when the corporation require to do so after inspection of the premises. The building was constructed in the year 1956.

Accordingly, Notice has been issued under section 353(B)(3) of the Act requiring us to get our building examined by the Registered   Structural Engineer by carrying out the structural tests and submit the Structural Stability Certificate along with Structural Audit Report.

(ii)  If the structural engineer certifies that the said building is fit for habitation and directs repairs of the building then the landlord/tenants/occupants shall have to carry on the repairs to the satisfaction of the Commissioner.

(iii) If the repairs are not carried out, the Commissioner may carry out the repairs and recover the dues from the landlord/tenants/occupants by demanding the same and if not paid, may recover it as the arrears of land revenue.

(iv) Failure to repair may also attract penal provision under section 471 of the Act, according to which a fine of Rs.25,000 or the amount equivalent to property tax for one year, whichever is higher,  may be levied.

2. (i) If in the event the structural engineer certifies that the building is a C-1 category building and is unfit for human habitation, then the provision of Section 354 comes into force. Under Section 354, the Commissioner is empowered to issue notice to the landlord/tenants/occupants to vacate and pull down the dilapidated building. If there is failure to adhere to the notice, then the Commissioner may, after giving a week’s notice, evict them and demolish the dilapidated building.

However on eviction/demolition:

i) the rights of the tenants and/or occupiers and/or owners in the said building are  not be affected;

ii) Owner will be required to provide alternate accommodation in the newly constructed building;

or Owner will have to enter into a settlement agreement with the occupants of the building;

iii) Unless permanent alternate accommodation is provided or a settlement agreement is reached, corporation will not issue IOD and Commencement Certificate for redevelopment of the property. 

3. Bombay High Court in its judgment/order dated 23.06.2014  in  the matter of Municipal Corporation Of Greater ... vs  M.M.R.D.A (https://indiankanoon.org/doc/138919108/) has mandated the above in its guidelines issued  to the Corporation for eviction under Section 354.

5. The key features of the guidelines of the High Court order are as follows:

a) The   order will be applicable only in respect of those buildings which are highly dilapidated and dangerous and/or classified in Category C-1 by the Corporation, whether owned by a private party or by the Corporation or any other authority and in respect of which building, either a notice under section 354   has been issued.

b) The Corporation will, before classifying a building under category C-1, conduct their own independent inspection and assessment with the help of the Engineers of their Department and carry out a survey of such building(s). The report of Structural Audit shall be taken into account.

c) The Corporation shall consider the report of Structural Engineer appointed by the owners and/or occupants classifying the building as dilapidated and dangerous. If the owners and/or the occupants bring conflicting reports on the status of the building, the Corporation shall refer the matter to Technical Advisory Committee (TAC) under the Chairmanship of Director (ES&P) with at least 3 other members, viz. City Engineer, Chief Engineer (DP) and Chief Engineer (P&D).

d) The TAC shall:

i) Carry out a visual inspection of the state of the internal and   external plaster, plumbing, drainage, whether the doors and windows close properly, whether steel in columns is exposed, whether there is settlement in the foundation, deflections/ sagging, major cracks in columns/beams, seepages/leakages, staircase area and column condition, lift well walls, U.G.tank, O.H. tank column condition, parapet at terraces, chhajas, common areas, terrace water proofing.

ii) Carry out specific tests like ultrasonic pulse velocity test, rebound hammer test, half cell potential test, carbonation depth test, core test, chemical analysis, cement aggregate ratio as may be considered by TAC as necessary.

e) If it is found after due notice that the building(s) is in a highly dangerous or in dilapidated condition, then in that event, the Corporation shall also make a list of the names of the tenants and/or occupiers in the said building and the carpet area of the premises in their respective occupation and possession including the floor at which the same has been occupied.

f) A copy of such list will be furnished to the landlord and/or owner/builder of the said building. The Corporation thereafter, will issue a notice under section 354 of the said Act calling upon such tenants and/or occupiers to vacate the said premises and if such notice under section 354 of the said Act has already been issued, then in that event the Corporation will give 7 days' notice to such tenants/occupiers, copies whereof will be furnished to the landlord for vacating the said building(s). If such tenant and/or occupier is not available, the Corporation shall affix such notice or Letter of Evacuation on any part of such premises.

g) The Corporation shall then take steps to turn off the water, supply, electric power and gas to such building immediately before the removal of occupiers.

h)  …………………………………………..

i) In the event, a person occupying such tenement whether of the privately owned building(s) or building(s) owned by Corporation or any other authority refuses to vacate the said premises, then the police shall remove such person from the said premises by using nominal force if required for the same.

j) The police may use such force as is reasonably necessary to remove such person and/or occupiers and/or allottee along with their belongings from the said premises, without causing damage to their movables.

k) The Corporation may then demolish such dangerous and  dilapidated building.

l) The rights of the tenants and/or occupiers and/or owners in respect of the said premises/property will not be affected by virtue of evacuation or demolition carried out by the Corporation of such dilapidated and dangerous building in exercise of the power under section 354 of the said Act. Such tenant and/or occupier and/or owner will be entitled to re-occupy the premises in respect of the same area after the reconstruction of the building, subject to the prevalent provisions of law pertaining to redevelopment of the property or subject to any arrangement or agreement arrived at by and between such tenants and/or occupiers with the owner of the building.  

m)If there are any pending suits/proceedings and there are any restraint orders passed, the Corporation shall be free to apply for   vacating and/or modifying such orders, which applications shall be decided on its own merits and in accordance with law.

n)  ……………………………………..

o) ……………………………………………….

p) In case privately owned buildings are demolished by the Corporation in exercise of power under Section 354 read with the present order, then the Corporation shall, while granting   sanction of redevelopment, impose a condition in IOD (Intimation of Disapproval) that no Commencement Certificate will be issued under section 45 of the MRTP Act, 1966 unless and until an Agreement either providing a Permanent Alternate Accommodation in a newly constructed building or a settlement is arrived at by and between the tenants and/or occupiers and the landlord in respect of the said demolished premises, is filed with the Corporation at the earliest.

q) ……………………………………………………………….