Sunday 8 January 2017

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. 

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