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Judgment
Kuldip Singh, Judge
This judgment shall dispose of Cr. MMO Nos. 251, 252, 262, 263, 264, 265, 266, 267, 269, 270, 271, 272 and 277 of 2011 as common questions are involved in all the petitions. The General Manager, NHPC Stage-III, Dharwala has filed Cr. MMO Nos. 251, 252, 262, 263, 264, 265, 266, 267, 269, 270, 271, 272 and 277 of 2011 for quashing the summoning orders and proceedings in case No. 351-1/11, 353-1/11, 372-1/11, 367-1/11, 374-1/11, 328-1/11, 329-1/11, 373-1/11, 379-1/11, 381-1/11, 380-1/11, 352-1/11 and 354-1/11 respectively, pending in the Court of learned Chief Judicial Magistrate, Chamba. The facts in this judgment are given from Cr. MMO No. 251 of 2011. It has been stated that petitioner is working as General Manager, NHPC Chamera Hydro Electric Project, Stage-III Project Dharwala, District Chamba (for short ''Project''). The petitioner has joined as General Manager in the Project on 11.1.2010. The learned Chief Judicial Magistrate has issued process for the offences pertaining to the year 2008 when the petitioner was not working as General Manager in the Project. The process has been issued to General Manager of the Project.
The National Hydro Electric Power Corporation Ltd. is a Company owned by the Government of India, registered and existing under the laws of India having its registered office at NHPC Office Complex, Sector 33, Faridabad, Haryana. The NHPC is constructing the Project in Bharmour and Chamba after taking permission from the Ministry of Environment and Forests for diversion of forest land for the construction of Project. The Ministry of Environment and Forests granted the permission for diversion of 96.145 hectares of forest land for construction of Project. The permission for additional diversion of 2.83 hectares of forest land for muck disposal sites had been granted to the NHPC vide letter dated 9.7.2009. The NHPC for construction of Project had entered into an agreement with M/s Hindustan Construction Company Ltd. on 17.10.2005. In the agreement there is Clause 5.2 for the disposal of the muck by the contractor.
The Range Forest Officer, Swai, Bharmour Forest Division has raised damage bill amounting to Rs. 61,73,258.00 lateron enhanced to Rs. 1.23 crores for alleged dumping of muck at unapproved sites near dam area, Kharamukh. The damage bills imposed by the H.P.Forest Department was contested by the Project as muck was stored temporarily at already diverted forest land for dam and reservoir by the Ministry of Environment and Forests, Government of India. The muck was later on lifted/utilized subsequently for production of aggregate used during concreting. The muck was stored temporarily in diverted forest land in Bharmour Forest Division after taking permission from Additional District Magistrate, Bharmour vide letter dated 7.12.2007. The NHPC brought this fact to the notice of the Divisional Forest Officer, Bharmour vide letters dated 22.10.2008 and 10.11.2008.
The NHPC officials also apprised the damage bill issued by the Forest Department to the Contractor M/s Hindustan Construction Company Ltd. vide letter dated 12.11.2008. There was no spilling of muck into the river. The issuing of damage bills for merely storing muck at already diverted forest land was not justified.
The Range Forest Officer, Upper Chamba, H.P. Forest Department had raised damage bills amounting to Rs. 2,49,62,500/- for alleged excess dumping of muck and improper protection measures at approved dumping sites No. 6 and 8 in October, 2008 and Rs. 1,90,00,000/-for alleged excess dumping of muck and improper protection measures at approved dumping sites No. 13 in November, 2008.
The Project had been facing severe problems to dispose off the muck at designated sites due to frequent road blockade due to PWD road widening/improvement works resulting in complete stoppage of movement of vehicles despite signing of MoU in 2006 and depositing Rs. 22.97 crores with HPPWD to complete PWD road widening/ improvement works which was not completed by June to December, 2008. In order to overcome such problem, 5 additional dumping sites 2.83 hectares were got approved from Ministry of Environment and Forests, Government of India on the recommendation of State Government in principle on 20.2.2009 and finally on 9.7.2009. The excavated muck had been stored provisionally near Kharamukh, Mohal Sulakhar, Khasra No. 3/1 by M/s Hindustan Construction Company Ltd. in the already diverted reservoir area by the Ministry of Environment and Forests for utilizing it for the production of coarse and fine aggregate, which was utilized further in concreting the underground water conductor systems (Tunnel) and dam.
The Project had taken permission on 7.12.2007 from Additional District Magistrate, Bharmour to store the muck in the above mentioned site. The allegation of Forest Department that muck had been dumped illegally without permission is not justified. The Project has taken adequate protection measures to prevent spillage of muck at disposal sites. The Project has completed the work of slope stabilization at muck disposal sites by constructing concrete grids and started rehabilitation of sites by spreading good earth and plantation.
The efforts of the Project were appreciated by Avay Shukla, Additional Chief Secretary (Forests), Government of H.P. appointed by the High Court to monitor environmental compliance of Hydel Projects during his visit to project on 13.7.2010. Avay Shukla in his report on damage bills issued by the Forest Department has observed that Project has been issued 17 damage reports in the last two years, imposing a penalty of Rs. 5.63 crores for illegal dumping of muck. The Project authorities have contested these damage reports. Avay Shukla observed that the Project should be fined only if the ''excess'' dumping leads to spillage of the muck. The Conservator of Forests, Chamba was asked to inquire into the matter afresh and in the meantime not to enforce the recovery of damages amounts from the Project.
The Forest Department did not take any action regarding review of damage bills despite directions from Additional Chief Secretary (Forests), Government of H.P. On repeated persuasion by the Project, a committee was constituted by the Conservator of Forests, Chamba on 21.3.2011 to inquire into the matter. The final decision of Conservator of Forests is still awaited. It has been stated that without waiting for the outcome of the decision of the Conservator of Forests, the Bharmour Forest Division has filed the challan against the petitioner before the learned Chief Judicial Magistrate, Chamba. The Divisional Forest Officer, Bharmour Forest Division has been requested to release the damage amount to get the damage reports compounded.
It has been stated that a meeting was held with the Divisional Forest Officer, Bharmour on 28.9.2011 and it was requested that the case for utilizing the already diverted forest land (reservoir) for temporary storage/use be recommended to Regional Office, Chandigarh, Ministry of Environment and forests, Government of India for seeking their concurrence/approval. He was requested not to file the cases in the Court of law. However, the H.P.Forest Department has filed many challans under Sections 32, 33 of the Indian Forest Act, 1927 (for short ''Act'') in the Court of learned Chief Judicial Magistrate, Chamba against the General Manager and two officers of the project namely Sanjeev Aggarwal, Manager (Civil) and Kulwant Singh, Manager (Civil). The summoning order has been assailed on the ground that the matter is to be reviewed by the Conservator of Forests, Chamba and without waiting for the outcome of the report of the Conservator of Forests, Chamba, the Divisional Forest Officer, Bharmour has filed the challan before the learned Chief Judicial Magistrate.
The summoning order is the abuse of the process of the Court. It has been stated that offences under Sections 32, 33 of the Act has not been made out against the petitioner. The summoning order is non-speaking. The summoning order is without application of mind. The evidence has not been scrutinized.
It has not been appreciated how the alleged offences are attributable to the present General Manager. There is no cogent and convincing evidence for filing challan against the present General Manager. It has not been established that the present General Manager was the incharge of the project at the time of commission of alleged offences. It has also not been established whether he was responsible for the conduct of business of the project at the relevant time.
The sanction to prosecute the present General Manager, Sanjeev Aggarwal and Kulwant Singh has not been taken as NHPC is a Corporation owned by the Government of India. Moreover, in the challan the forest department has concealed this vital fact that the land where muck was temporarily stored was already diverted by the Ministry of Environment and Forests, government of India (reservoir and dam) and stored muck has been lifted / utilized. The learned Chief Judicial Magistrate has not considered the observations of Avay Shukla, Additional Chief Secretary (Forests).
The NHPC has awarded the construction work to the Hindustan Construction Company Ltd. and offence, if any has been committed by the Hindustan Construction Company Ltd. and not by the officials of the NHPC. The diversion of the forest land has been allowed to NHPC under the Forest Conservation Act, 1980. The proceedings initiated by the Forest Department under the Act are totally uncalled for.
The respondent has filed the reply. In the preliminary submissions, it has been stated that the petition is not maintainable as the petitioner has concealed material facts. The respondent has not filed the complaint against the petitioner in a personal capacity but in official capacity as the damage reports were issued in the name of General Manager of the Project as the work of the Project is executed by the officers, employees of NHPC under the control and command of General Manager of the Project. The damage bills were sent to General Manager of the Project, who being incharge of the Company is liable for the criminal acts committed by its employees.
The Additional District Magistrate, Bharmour was not competent authority to transfer / divert the forest land in favour of NHPC. The permission granted by the Additional District Magistrate as claimed by the NHPC is contrary to the provisions of Forest Conservation Act, 1980 and the Act. The Additional District Magistrate, Bharmour has no authority to allow the petitioner to use any forest land temporarily or permanently for using the said land for the dumping of muck as per the provisions of Forest Conservation Act, 1980 and the Act.
It was very much in the knowledge of the NHPC and its management that permission of Ministry of Environment and Forests, Government of India is required for dumping of muck and they have already taken permission/approval of the muck dumping sites along Ravi river in the original proposal as well as subsequent proposal. The challan submitted against the General Manager, Sanjeev Aggarwal and Kulwant Singh is in accordance with law. NHPC has acted contrary to para 2 Clause 16 of the guidelines issued by the Ministry of Environment and Forests (FC Division), Government of India dated 19.9.2005 wherein NHPC was specifically directed that land diverted shall not be used for any purpose other than that specified in the proposal. The petitioner has used the land for the purpose of dumping the muck when the same was specifically approved and given for dam reservoir. The NHPC authorities have illegally dumped the muck in the said area without the necessary approval from the competent authority as per the provisions of Forest Conservation Act, 1980.
The muck was to be transported to the approved muck dumping sites from Luna to Dunali which are located at a distance of approximately 6 KMs to 20 KMs from the dam construction area. In order to avoid the extra expenditure, the NHPC authorities have clandestinely dumped the muck in the forest land near Kharamukh which is located approximately 100 meters away from the site of construction of dam.
The Ministry of Environment and Forests, Government of India, approved 19 Nos. of muck dumping sites, out of which four numbers of approved muck dumping sites have not been used by the Project authorities and one dumping site has been partially used.
The petitioner has not come to the Court with clean hands and have suppressed material facts that Khasra Nos. 3/1/1, 3/1/2, 4/1, 4/2, 10/1, 10/2 and 632/11/1 total measuring 14-5-3 bighas situated at Mohal Sulakhar are classified as Open DPF which was demarcated on 2.6.2011 in the presence of Range Forest Officer, Swai and Munish Kumar, Environmental Officer as representative of the Project and Sanjay Gore, Manager, M/s Hindustan Construction Company, working for NHPC on the Project. It was found during demarcation that muck was illegally dumped by NHPC on Khasra Nos. 3/1/1, 3/1/2, 4/1, 4/2, 10/1, 10/2 and 632/11/1 total measuring 14-5-3 bighas. The said land was not transferred / diverted for the muck dumping by the competent authority in favour of NHPC, for the Project. The NHPC has contravened Sections 32, 33 of the Act and Forest Conservation Act, 1980. On merits, the respondent has denied the stand of the petitioner. It has been stated that the learned Chief Judicial Magistrate has rightly issued the process. The submission has been made for dismissing the petition. 21. Heard and perused the record. The challan has been filed against the petitioner and two others namely Sanjeev Aggarwal, Manager (Civil) and Kulwant Singh, Assistant Manager (Civil) u/s 32 and Section 33 of the Act. The allegations against the petitioner and co-accused are that on 13.10.2008 Forest Guard, Prem Dev, incharge, Ulasa Beat alongwith witnesses Jagat Ram and Jarmo was in open DPF and found that at place Kharamukh on Chamba - Bharmour road from 50 meters to 600 meters NHPC had thrown muck of Project without any permission. Sanjeev Aggarwal and Kulwant Singh were asked to produce permission to dump muck but they could not produce any such permission. They rather said that if any action in this regard was to be taken then same be taken against General Manager of the Project.
The Forest Guard, measured the muck on the spot thrown by the accused which was found 10,900 cub.m. The damage report No. 38 dated 13.10.2008 was prepared on the spot. The accused without permission had thrown the muck in open DPF comprised in Khasra No. 3/1/1, 3/1/2, Khasra Nos. 4/1, 4/2, 10/1, 10/2 and 632/11/1, Kita 7, total measuring 14-05-03 hectares Mohal Sulakhar. In the Ravi river rare fish species were killed and ecological balance was disturbed due to throwing of muck. The accused have committed offence punishable under Sections 32, 33 of the Act. The damage was assessed Rs. 9,81,000/- but was not paid by the accused though, they prayed time for payment several times. However, lateron, the accused declined to pay the damages, on these allegations, the challan was filed in the Court. The Chief Judicial Magistrate on 20.10.2011 summoned the accused under Sections 32, 33 of the Act.
The petition has been filed by the General Manager of the Project by designation. A.K.Malhotra, General Manager of the Project has filed the affidavit in support of the petition. A.K.Malhotra has not filed the petition in his own name. He has stated that he joined as General Manager on 11.1.2010 and was not holding the post of General Manager in the Project in the year 2008 when the offence was allegedly committed. The Supreme Court in Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and others AIR 1983 Cri.L.J.159 on a question whether Manager or Directors of the Company are to be prosecuted or not has held as follows:-
So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act. So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed.
We, however, do not agree that even accused No. 3, respondent No. 1, who is Manager of the Company and, therefore directly in charge of its affairs, could fall in the same category as the Directors. Hence, we would set aside that part of the judgment of the High Court which quashes the proceedings against the Manager, respondent No. 1 (Ram Kishan Rohtagi).
The question before the Supreme Court in Standard Chartered Bank and Others etc. Vs. Directorate of Enforcement and Others etc., was whether a Company or a corporate body could be prosecuted for an offence for which sentence of imprisonment is a mandatory punishment. The Supreme Court held that there is no immunity to the Companies from prosecution merely because the prosecution is in respect of offences for which the punishment prescribed is mandatory imprisonment.
There are in all three accused against whom the challan has been filed namely General Manager, Sanjeev Aggarwal and Kulwant Singh. The petition has been filed only by General Manager. It has not been denied that General Manager of the Project is the over all incharge of the Project executed by NHPC. The General Manager, therefore, is answerable to the allegations. It will be considered by the trial Court whether the present incumbent of the post of General Manager of the Project can be punished even if the allegations are proved as per the prosecution.
The learned counsel for the petitioner has relied K. Ramakrishna and Others Vs. State of Bihar and Another, on the point of quashing of the proceedings. The Supreme Court in the said case has held as follows:-
The inherent powers of the High Court u/s 482 of the Code of Criminal Procedure can be exercised to quash proceedings, in appropriate cases either to prevent the abuse of process of any court or otherwise to secure the ends of justice. Ordinarily the criminal proceedings which are instituted against the accused must be tried and taken to logical conclusions under the Code of Criminal Procedure and the High Court should be reluctant to interfere with the proceedings at an interlocutory stage. However, there may be cases where the inherent jurisdiction to quash proceedings can and should be exercised. Where there is a legal bar against the institution or continuance of the criminal proceedings in respect of the alleged offence, the High Court should not be reluctant to exercise the inherent jurisdiction. Similarly where the allegations in the FIR or the complaint, even if they are taken at their face value do not constitute the offence alleged, or without appreciating the evidence but only merely by looking at the complaint or the FIR or the accompanying documents, the offence alleged is not disclosed, the person proceeded against in such a frivolous criminal litigation has to be saved.
The Supreme Court in M.A.A. Annamalai Vs. State of Karnataka and Another, has held as follows:-
The inherent power should not be exercised to stifle the legitimate prosecution but at the same time no person be compelled to face criminal prosecution if basic ingredients of the offence alleged against him are altogether absent.
In the petition lengthy averments have been made but substance of the allegations against the accused is that they are answerable to the illegal dumping of muck in open DPF. The assessed amount of damage has not been paid by the accused, they have contravened Sections 32, 33 of the Act. The petitioner has not denied the throwing of the muck in the open DPF. The contention has been raised that muck was thrown as a temporary measure and it was actually thrown by M/s Hindustan Construction Company Ltd., Contractor of NHPC for the Project. The contravention, if any, was done by M/s Hindustan Construction Company Ltd. and not by the NHPC, Project officers and employees. The contention has also been raised that NHPC has requisite permission from the Ministry of Environment and Forests, Government of India and such permission was given on 19.9.2005 and 9.7.2009 for dumping muck. It has also been contended that the muck was dumped after obtaining permission from the Additional District Magistrate, Bharmour on 7.12.2007. The report made by Avay Shukla, Additional Chief Secretary (Forests) has also been relied on the point that in the said report the Additional chief Secretary (Forests) has stated that Conservator of Forests, Chamba was asked to inquire into the matter afresh and in the meantime not to enforce the recovery of the damages amount from the Project.
As per communication dated 19.9.2005 the diversion of 96.145 hectares of forest land for construction of the Project has been granted by the Central Government u/s 2 of the Forest (Conservation) Act, 1980 on fulfillment of various conditions including that the forest land shall not be used for any purpose other than the specified in the proposal. It is the stand of the State that NHPC had already taken permission/approval of the muck dumping sites along the Ravi river in the original proposal as well as in subsequent proposal. The NHPC had used the land for the purpose of dumping the muck when the same was specifically approved and given for dam reservoir. As per the stand of the State NHPC has illegally dumped the muck in the area without necessary approval from the competent authority under the Forest Conservation Act, 1980. This has been done according to the State in order to avoid costs.
The stand of the petitioner that muck was dumped as per the permission granted by the Additional District Magistrate on 7.12.2007. This stand of the petitioner indicates that NHPC has no approval from the Government of India under the Forest Conservation Act, 1980 to dump the muck where NHPC has allegedly dumped the muck, otherwise, there was no question of seeking permission to dump the muck from Additional District Magistrate, Bharmour as claimed by the NHPC. The permission granted by the Additional District Magistrate to dump the muck is inconsequential. The Section 2 of the Forest Conservation Act, 1980 provides restriction on the use of forest land for non-forest purpose except with the prior approval of the Central Government. In the present case, according to the State approved dumping sites by the competent authority are different from the sites where the NHPC has dumped the muck for which the accused have been prosecuted.
The petitioner cannot take the benefit of observation of Additional Chief Secretary (Forests), Govt. of H.P. regarding dumping of muck in open DPF by NHPC in contravention of Sections 32, 33 of the Act in the petition. It has not been shown that Avay Shukla report is part of challan filed in the Court. Avay Shukla report cannot be considered till it comes on the record of trial Court in accordance with law. The contention that muck has been thrown by M/s Hindustan Construction Company Ltd. and not by the NHPC has no force. It is the case of the petitioner that M/s Hindustan Construction Company Ltd. is executing the work of NHPC and, therefore, NHPC is answerable to the acts of M/s Hindustan Construction Company Ltd. It has not been shown under what provision sanction to prosecute General Manager, Sanjeev Aggarwal and Kulwant Singh is required.
The learned Chief Judicial Magistrate has issued the process to the petitioner and two accused namely Sanjeev Aggarwal and Kulwant Singh. On the basis of material on record it cannot be said that learned Chief Judicial Magistrate has erred in issuing process to the petitioner and two other accused for offences punishable under Sections 32, 33 of the Act. The summoning order does not require detailed reasons. In K. Ramakrishna (supra) and M.A.A. Annamalai (supra) it has been held that ordinarily the criminal proceedings which are instituted against the accused must be tried and taken to logical conclusions under the Code of Criminal Procedure and the High Court should be reluctant to interfere with the proceedings at an interlocutory stage. The inherent power should not be exercised to stifle the legitimate prosecution unless the person is compelled to face criminal prosecution if basic ingredients of the offence alleged against him are altogether absent. In view of above discussion, the prosecution case against the petitioner prima-facie cannot be said to be without substance. There are allegations against the petitioner for commission of offence under Sections 32, 33 of the Act. The petitioner has failed to make out any case for interference. There is no merit in Cr.MMO Nos. 251, 252, 262, 263, 264, 265, 266, 267, 269, 270, 271, 272 and 277 of 2011 which are dismissed. Interim orders are vacated and pending applications, if any, disposed of. The parties through their counsel are directed to appear before the learned Chief Judicial Magistrate, Chamba on 2.7.2012. The record be sent to the Court below immediately so as to reach before the date fixed.