Bird Airport Hotel Pvt Ltd & Ors. v. Union of India & Ors.

1. This petition has been filed for quashing the summoning order dated 26th February, 2018 in Complaint Case (CC) No.11996/2017 and the complaint pending in the Court of Ld. ACMM, Tis Hazari Courts, Delhi. The said complaint was filed by the respondent SEIAA (State Level Environment Impact Assessment Authority) under Sections 15/16/19 of the Environment (Protection) Act, 1986 (EPA) for allegedly starting construction activity (excavation work) at the hotel site before grant of environmental clearance.

2. The petitioner No.1 is an Indian company (petitioner Nos.2-4 being the directors of the company) and engaged in the business of constructing hotels. An entity called the Delhi International Airport Private Limited (DIAL) was incorporated and engaged by the Airport Authority of India (AAI) to operate, maintain, develop, design, construct, upgrade, modernise, finance and manage the Indira Gandhi International Airport (IGI) at Delhi. Land was leased by AAI to DIAL on 25th April, 2006. DIAL envisaged the development of a hospitality district on this leased land referred to as Delhi Airport Aerocity, where the earmarked area for approximately 45 acres was divided into 13 parts for development of assets including hotels in terms of the Operation, Management and Development Agreement (OMDA) dated 04th April, 2006. By means of a competitive bid process, DIAL selected bidders which included the petitioner/company for the purpose of developing, designing, constructing, owning, operating and maintaining hotels within the Aerocity.

3. As part of this process, petitioner No.1 was licensed asset No.10, Aerocity for constructing a four-star hotel. Alongside, number of other assets were licensed to various parties for construction of hotels, malls etc. for developing a hospitality centre. At the time of allotment of asset No.10 to the petitioner company, it was intimated by the licensor DIAL that it had sought the necessary clearance under the EPA. The EC was accordingly granted on 17th January, 2007, for the entire project, which by implication included the Aerocity area as well. This was also apparently corroborated by the acknowledgement of the State Level Expert Appraisal Committee (SEAC). Accordingly, no separate EC was required as long as the construction was carried out within the leased land for which EC had already been granted to DIAL. Even during the bidding process when queries have been asked by bidders, DIAL replied that the entire airport premises which included the hotel projects had received environmental clearance.

4. The petitioner No.1 through petitioner No.2 moved an application dated 29th May, 2010 to respondent No.3 seeking environmental clearance of the project stating to have a built-up area of approximately 30,000 sq. meters. The respondent No.3 in response intimated vide letter dated 25th November, 2010 to attend a meeting scheduled for 26th November, 2010. Pursuant to the deliberations and after consideration of documents submitted by petitioner No.1, the respondent issued the environmental clearance vide letter dated 06th June, 2011 and the same was approved in the 14th Meeting held on 18th May, 2011. The petitioner continued to carry out the construction of the hotel and after getting the occupancy certificate commenced the business of running the hotel and in the meantime also obtained a consent order from Delhi Pollution Control Committee.

5. To the petitioner’s surprise after 7 years a complaint was filed before the Ld. ACMM on 02nd August, 2017 which is impugned herein. The petitioners have assailed this complaint on the basis that the prosecution is based on Chairman’s instruction vide OM dated 12th December, 2012 which was later quashed by the National Green Tribunal, Principal Bench vide order dated 07th July, 2015. The Ld. NGT held that the said OM suffered from the infirmity of lack of inherent jurisdiction and held it to be ineffective. Also, the EIA notification dated 14th September, 2006 mandating clearance for building and construction projects having built-up area 20,000 sq. meters upto 150,000 sq. meters was quashed by the Ld. NGT vide order 07th July, 2015 prior to the filing of the instant complaint. It is further contended that the Chairman of the respondent in the respondent committee in its meeting dated 10th December, 2013 had considered this issue of prosecution and noted that prima facie it was odd that once EC had been granted to a project proponent, the matter was not closed but opened to prosecute for period violation done prior to the consideration of the matter. However, it was considered that since they were bound by the OM dated 12th December, 2012, they had no alternative. Further in Meeting dated 24th March, 2017 at Agenda No.14, it was noted that in view of unified building by laws notified in 2016 there was no longer a concern with the petitioner’s hotel having built-up area less than 150,000 sq. meters. However, in compliance of earlier decisions the prosecution was still proceeded ahead with.

6. Learned counsel for the respondent No.3 had controverted these contentions stating that even while the EC was granted on 18th May, 2011, the Ministry of Environment and Forest from time to time was issuing instructions to initiate action for past violation including under Sections 15/19 of the EPA. Even recently, an OM dated 07th July, 2021 has been issued. Submission was also made regarding the scope of the Courts to quash such complaints and summoning orders.

7. Accordingly, it is contended that the complaint filed by the respondent is frivolous as it relates to excavation work prior to the construction starting for which the clearances were received as also commencement certificate was granted on 06th September, 2016. In any event, blanket approval had been granted to DIAL on 17th January, 2007 for the entire 5106 acres which included the hospitality interested. It is, therefore, contended that there was no mens rea for the commission of the offences; the EC was already obtained by DIAL; the EC was yet again obtained by the petitioner; the petitioner had completed construction and received approval for function. The petitioner also relies upon decision of this Court dated 28th March, 2023 passed in W.P.(CRL) 629/2019 in “Caddie Hotels Pvt. Ltd. v. SEIAA” wherein similar circumstances the summons order issued on the same day was quashed for another Aerocity project.

8. In the said decision, reliance was placed on inter alia In Maruti Suzuki India Ltd. v. Ministry of Environment and Forests, (2014) SCC OnLine Del 3264, this Court had held in relation to an issue which arose relating to a project which was not within the ambit of the EIA Notification, 2006,8that the petitioner in that case could not have said to have act with mala fide intent, since the petitioner was being asked to seek environmental clearance despite its bona fide belief that EIA Notification was not applicable to its projects. In Alpha G. Corp. Developers Pvt. Ltd. v. State of Haryana, (2017) SCC OnLine P&H 2292, the High Court of Punjab & Haryana in relation to the petitioner’s project without obtaining environmental clearance relating to constructions already carried out prior to the environmental clearance held that since on the date of institution of the complaint, the necessary permission and clearance was already granted by the competent authority, it would be a fit case for quashing of the impugned complaint, following the decision of the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal, (1992) Supp (1) SCC 335. Reliance was also placed on Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692, where it was held that the test to be applied at the stage of quashing is whether the uncontroverted allegations prima facie establish the offence. In Raymond Ltd. v. H.V. Doshi & Brothers Pvt. Ltd., (2006) SCC OnLine Cal 31, the High Court of Calcutta held that if from the consideration of the complaint it does not transpire that the petitioner had the intention to deceive or cheat the complainant from the beginning and that there was no element of mala fide intent, it would be a fit case where the Court can exercise its inherent jurisdiction to quash the complaint. In Manik Taneja v. State of Karnataka, (2015) 7 SCC 423, the Hon’ble Supreme Court observed that while the test is that uncontroverted allegations are to be seen in adjudicating a petition of quashing, the Court could take into consideration any special features which appear in a particular case to consider whether it is expedient and in interest of justice to permit the prosecution to continue.

9. From a perusal of the documents on record and assessment of the contentions of the parties, it is evident that DIAL had already obtained the environmental clearance on 17th January, 2007 for the entire area of development which included the hospitality district as well. The Aerocity project was part of the land leased by the Airport Authority of Indian in favour of DIAL. Further, even though the petitioner/company for its own reasons and for its own volition applied for the separate EC, the same was recommended by the SEAC on 18th May, 2011 for granting of EC.

10. Further, the EC had been obtained by the petitioner in any case, the commencement certificate had been also given by the authorities. In these circumstances for the complainant/agency to backtrack the flow of events and file a complaint after 7 years of the said approval having been recommended for clearance and granted as also the project having been completed and consent to operate being given on 17th August, 2015, the continuance of the complaint is not tenable. In any event, these facts are not disputed by the learned counsel for the respondent/authority and the limited contention has been that digging of the ground had occurred while the permission was being considered, amounts to taking a hypertechnical view which is not in consonance with the flow of events. There is no dispute that the allocation of the said areas was for setting up hotel assets.

11. Moreover, from the facts of the case as presented, it does not seem that there was any mala fide intention to not procure an EC or to construct without an EC clearance or to commit any violation, since at the very least there was a genuine and bona fide belief that the EC had already been granted to DIAL and the project was merely a subset of the larger airport development project. The impugned order dated 26th February, 2018 is devoid of any appreciation of facts or any reasons and has summarily arrived at a conclusion that the petitioner has violated the provisions of the Environment (Protection) Act, 1986 as well as the 2006 Notification and, therefore, summoned them for offences under Sections 15/16/19 of the Environment (Protection) Act, 1986.

12. The impugned order is, therefore, set aside and the said complaint No. 4558/2018 dated 30th January, 2018 filed by the complainant/SEIAA is accordingly quashed, and also the proceedings emanating therefrom.

13. Judgment/Order be uploaded on the website of this Court.

JUDGE APRIL 25, 2023