IN THE HIGH COURT OF KARNATAKA KALABURGI BENCH
(Original Jurisdiction)
W.P No. /2018
BETWEEN
M/s ABC Pvt Ltd
XYZ (Why XYZ put head office address), ……………….
Represented by its General
Manager (E&S)
Mr.K.S.PQR
….Petitioner
AND
The State of Karnataka, ….Respondent
MEMORANDUM OF WRIT PETIITON UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CODE OF CRIMINAL PROCEDRUE
Petitioner most respectfully submits as under :-
- That, the address of the Petitioner for the purpose of service of summons, notices etc. is that of his Advocates, Opposite to New Kotari Bhavan, Jewaragi Road, Kalaburagi & the address of the Respondent for the aforesaid purpose is as shown in the cause title above.
- Petitioner being aggrieved by the registration and continuation of investigation in FIR No. 00 / 2017 –18 dated. 05.01.2018 registered for the offences punishable U/Ss. 9, 39, 51 of Wildlife Protection Act, 1972 is before this Hon’ble Court challenging the same on the following facts and grounds. Certified Copy of the impugned FIR No.00/2018 is impugned herein is annexed herewith produced as Annexure A.
BRIEF FACTS
Petitioner Company is a law abiding person and was incorporated/started in the year 2011 with an idea/intention to provide clean renewable energy and the Company after having come through the various challenges at its inception has, come out victorious and it is now one of the leading Companies in the Renewable Energy sector. ReNew Power is committed to leading a change in the country’s current energy portfolio by delivering cleaner and smarter energy choices and thereby reducing India’s carbon footprint. ReNew Power’s mission is to play a pivotal role in meeting India’s growing energy needs in an efficient, sustainable and socially responsible manner. The company creates value through reliable and efficient generation of non-conventional power through innovation in solar and wind power solutions Company has started several Solar and Wind Power projects across the country including the state of Karnataka. Copy of the incorporation of Petitioner Company under the Companies Act is annexed herewith produced as Annexure B.
One such Solar Power projects was started by the petitioner Company in the state of Karnataka at XYZ village, Humnabad taluk, District Bidar with a capacity to generate upto 20 MW of Solar Power . That, for this project as per the requirement , the petitioner set up a special purpose vehicle (SPV) namely M/S ABC Wind Energy (Budh 3) Private Limited. Copy of the Incorporation Certificate of M/S ABC Wind Energy (Budh 3) Private Limited under the Companies Act is produced as Annexure C That, said M/S ABC Wind Energy (Budh 3) Pvt. Ltd. has entered into various Agreements with farmers for purchase of various land parcels and it has also obtained all the necessary government approvals/permission to start the production. Copies of the few Agreements are produced as Annexure D, D1 and D2 respectively.
That, the order of the Government dated 28/3/2017 granting No objection for the change in location for establishment of Solar Power Project at XYZ Village, Humnabad taluk, District Bidar from Malhar Village, Yadgir District; and, further for sale of Solar power so generated to any third party/s also stands in the name of M/S ReNew Wind Energy (Budh 3) Pvt.Ltd Coy of the same is produced as Annexure E
That, it appears on 05.01.2018, the Deputy Range Forest Officer, Humnabad presented himself before the Forest Department, Bidar Range alleging that one male black buck had managed to enter the Solar Power Generation Plant No. 2 situated in XYZ village of Humnabad taluk belonging to ABC Power Ventures Pvt. Ltd and the said black buck while attempting to come out of the said Solar Power Generation plant got stuck in the Barbed fencing & injured itself on its neck & succumbed to the injuries. Based on these allegation FIR No. 00 / 2017 –18 dated 05.01.2018 came to be registered against the Petitioner Company for the offences punishable U/S. 9, 39, 51 of Wildlife Protection Act, 1972.
- A Bare reading of the provisions under which the petitioner has been alleged to have committed the offences would be suffice to assert that, the complaint filed is a clear abuse of ones power to file such complaints. The complaint averments nowhere attributes/attracts the commission of any offences under the Provisions of the Wild Life protection Act more so the alleged offences. As a matter of fact, no one has seen the actual accident.
Further, a bare reading of the complaint would make it absolutely clear that even if the entire allegations are taken to be true no offence can be made out against the petitioner herein. Even otherwise the petitioner who is a Company and who has nothing to do with the day toda affairs M/S ABC Wind Energy (Budh 3) Pvt.Ltd. That, all permissions , Agreements of sale with the owner/s of different land/s at XYZ Village , Government order/s etc. are in the name of M/S ABC Wind Energy (Budh 3) Pvt.Ltd and thus assuming without admitting that an offence is being committed the same, by any stretch of imagination cannot be attributed to the Petitioner Company and thus cannot be held responsible for the death of a Black Buck on the alleged premises.
That, further M/S ABC Wind Energy (Budh 3) Pvt.Ltd also cannot be held responsible for the death of the alleged Black Buck.
Further, any or all proceedings for the offences punishable under the Wild Life Protection Act has to be initiated by filing of a private complaint. The Magistrate on receiving the complaint either take the cognizance and issue the process to the accused or order for investigation.
The registration of the complaint alleging commission of offences U/Ss. 9, 39, 51 of Wildlife Protection Act, 1972 against ReNnew Power Ventures Pvt. Ltd is unwarranted and illegal. The complaint does not even disclose the bare minimal overt acts if any to attract alleged offences against the petitioner.
- The petitioner in the above mentioned facts and circumstances is before this Hon’ble court seeking invocation of its inherent powers under section 482 of the Criminal Procedure Code in quashing the entire proceedings in FIR No.00/2018 pending before the court below.
- The petitioner have not filed previous petition for the relief now sought and it is not public interest litigation.
- Under the circumstances the petitioner has no other alternative efficacious remedy except to approach this Hon’ble Court under Article 226 and 227 of the Constitution of India on the following among other :-
G R O U N D S
- The registration of FIR No.00/2018 against the petitioner for the offences under section 9, 39 r/w section 51 of the Wild Life Protection Act is unjust and uncalled for when the complaint averments does not disclose commission of any offences more so the offences alleged against the petitioner. Hence, the same needs to be set aside at the hands of this Hon’ble court. Petitioner and its SPV have has not committed any offences much less the alleged offences under Wildlife Protection Act.
- The allegation as per the complaint is that, the alleged Black Buck entered into the factory premises of the ABC Power Ventures Pvt. Ltd., and it while trying to exit from the said premises got stuck in to Barbed fencing and strangulated itself to death. Nowhere in the complaint is it stated as to the role /overt act of any living being/person as to their involvement in the accidental death of the alleged Black Buck.
- It is submitted that the registration of FIR No. 00/2018 against the petitioner for the alleged accidental death of Black Buck is nothing but a futile exercise on the part of the respondent/ complainant in order to harass the petitioner.
- It is respectfully submitted that, the registration of the present FIR against the Petitioner under Wildlife Protection is strange/illogical to say the least and deserves to be quashed in no uncertain terms. The very averments of the complaint are sufficient for this Hon’ble court to come to the conclusion that, the Petitioner is in no way responsible for the unfortunate death of the black buck. It is submitted that, continuation of such proceedings which would ultimate end in acquittal is mere abuse of process.
- It could be seen from the the Annexure C to E now produced by the Petitioner would be suffice to hold that, petitioner is no way involved/concerned with the day today affairs of the M/S ABC Wind Energy (Budh 3) Pvt.Ltd Company in whose name all the permission/sanctions have been granted by the all concerned Authorities/departments . That, even otherwise power generation has been started only after obtaining all the requisite permissions from all the concerned government departments and as such, no fault can be attributed on anyone including M/S ABC Wind Energy (Budh 3) Pvt.Ltd. for the accidental death of a black buck. On this count alone the proceedings initiated against the Petitioner and its SPV deserves to be quashed.
- It is respectfully submitted that, no offence as alleged U/S. 9, 39 & 51 of Wildlife Protection Act, 1972 are made out and Petitioner and its SPV . On perusal of the records it is clear that the ingredients required to attract offences punishable U/S. 9, 39 & 51 of Wildlife Protection Act, 1972 are conspicuously missing thereby no offence as alleged is made out against the Petitioner.
- In order to attract commission of offence under section 9 of the Wild Life Protection act the necessary ingredient of petitioner being involved in the Hunting of the alleged Black Buck is clearly missing from the complaint averments.
- That, Petitioner has neither acquired or kept in his possession, custody or control any wild Animal/s or has he sought to transfer by way of Gift/sale or there is any allegation of petitioner damaging/destroying any of the Government property in order to attract commission of any offence under section 39 of the Wildlife Protection ACT. As, such, continuation of the proceedings would amount to abuse of process of law.
- A perusal of the complaint makes it clear that, there are no allegations leveled against any individual or person/s alleging specific overt acts. However, now based on this illegal complaint first respondent is harassing the the officials/employees of Petitioner Renew Power Ventures Pvt Ltd. and its SPV are put to unnecessary trouble on the pretext of investigation etc.
- The Petitioner company which is a leading company on power generation with the help of renewable sources such as wind & solar energies and which is committed to leading a change in the country’s current energy sector by delivering cleaner & smarter energy solutions is been sought to be made as Accused in absolute disregard to the requirement of Law and procedure involved for registering a criminal complaint and prosecution there under.
- The Petitioners may be permitted to urge other additional grounds at the time of the final hearing.
GROUNDS FOR INTERIM PRAYER
- It could be seen from the Annexure C to E now produced by the Petitioner would be suffice to hold that, petitioner is no way involved/concerned with the day today affairs of the M/S ABC Wind Energy (Budh 3) Pvt. Ltd Company in whose name all the permission/sanctions have been granted by the all concerned Authorities/departments. That, even otherwise power generation has been started only after obtaining all the requisite permissions from all the concerned government departments and as such, no fault can be attributed on anyone including M/S ABC Wind Energy (Budh 3) Pvt.Ltd for the accidental death of a black buck. Therefore, it is just and necessary to stay the impugned common order under Annexure-E, in the interest of justice.
P R A Y E R
(i) Call for the records.
(ii) Set aside/quash the entire proceedings in FIR No. 00 / 2018 Dt. 05.01.2018 registered against the petitioner for the offences punishable U/S. 9, 39, 51 of Wildlife Protection Act, 1972 and pending investigation on the file of the first respondent. (Annexure A)
(iii) Pass such other orders as this Hon’ble Court deems fit in the circumstances of the case, in the interest of justice and equity.
INTERIM PRAYER
Pending disposal of the above petition, this Hon’ble Court be pleased to pass an interim order staying all further proceedings in FIR No. 00 / 2018 Dated 05.01.2018 registered for the offences punishable U/S. 9, 39, 51 of Wildlife Protection Act, 1972 Produced at Annexure A, in the interest of justice.
Kalaburagi.
Date : Advocate for the Petitioner
ADDRESS FOR SERVICE
Advocate,
No.00/1/165, Godutai Nagar,
Kalaburagi.
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
Writ Petition No. /2018
BETWEEN
M/s ABC Power Ventures Pvt Ltd .........Petitioners
AND :
The State of Karnataka ………Respondents
SYNOPSIS
1) ………………. Petitioner Company came to be incorporated with an idea/intention to provide clean renewable energy and it is now one of the leading Companies in the Renewable energy sector.
1) ………………. M/S ABC Wind Energy (Budh 3) Pvt.Ltd which is Special Purpose Vehicle (SPV) came to be incorporated
3) 28.03.2017: The permission to start the project which was initially granted in favour of M/S ABC Wind Energy (Budh 3) Pvt.Ltd at Malhar Village, Yadgir Taluk came to be subsequently changed to XYZ Village, Humanabad Taluk.Distrci Bidar.
4) 08.05.2017 & 09.05.2017: M/S ABC Wind Energy (Budh 3) Pvt.Ltd has entered into various Agreements for purchase of the Lands at XYZ Village in relation to starting the Solar Power Project.
5) 05.01.2018 : FIR No. 00/18 came to be registered against the Petitioner Company for the offences punishable U/S. 9, 39, 51 of Wildlife Protection Act, 1972 .
BRIEF FACTS
The petitioner Company was started in the year 2011 with an idea/intention to provide clean renewable energy and the Company after having come through the various challenges at its inception has come out victorious and it is now one of the leading Companies in the Renewable energy sector. The petitioners company is registered under section 13(5) of the Companies Act 2013. The permission to start the project which was initially granted at Malhar Village, Yadgir Taluk came to be subsequently changed to XYZ Village, Humanabad Taluk. M/S ABC Wind Energy (Budh 3) Pvt.Ltd has entered into various Agreements for purchase of the Lands at XYZ Village and that, all the necessary permissions form various departments and the Government order permitting production and sale of Solar Energy to any party/s stand in the name of M/S ABC Wind Energy (Budh 3) Pvt.Ltd. This being the position the respondent has now registered FIR No. 00/ 2018 dated 05.01.2018 for the offences punishable U/S. 9, 39, 51 of Wildlife Protection Act, 1972 against the Petitioner Company who is neither responsible nor liable for the day today affairs of the M/S RENEW Wind Energy (Budh 3) Pvt.Ltd. Hence, this petition.
Date: .02.2018 Advocate for Petitioners
Place : Kalaburagi
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
Writ Petition No. /2018
BETWEEN
M/s ABC Power Ventures Pvt Ltd .........Petitioners
AND :
The State of Karnataka ………Respondents
I N D E X
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Sl. No. |
Particulars |
Pages |
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1. |
Synopsis |
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2. |
Memorandum of Writ Petition |
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3. |
Affidavit |
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4. |
Annexure-A: Copy of First Information Report. |
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5. |
Annexure-B: Copy of the incorporation of Petitioner company under the Companies Act. |
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6. |
Annexure-C : Copy of the incorporation of M/S ABC Wind Energy (Budh 3) Pvt.Ltd. under the Companies Act.. |
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7. |
Annexure-D, D1 and D2: Copies of the Sale agreements. |
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8. |
Annexure-E: Copy of Government notification dtd. 28.03.2017. |
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9. |
Vakalath |
Date: .02.2018 Advocate for Petitioners
Place : Kalaburagi
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
Writ Petition No. /2018
BETWEEN
M/s ABC Power Ventures Pvt Ltd .........Petitioners
AND :
The State of Karnataka ………Respondents
AFFIDAVIT
I, Mr.PQR S/o Late R PRQ Age: 47years, Occ: General Manager in M/s ABC Power Ventures Pvt Ltd R/O HSR Lay out Bangalore, today at Kalaburagi, do hereby solemnly affirm as under;
- I am the General Manager (E&S) representing the petitioner in the top noted petition, I know the facts of the case, hence I am swearing this affidavit.
- That, the contents of the writ petition from Para No. 1 to …. are true and correct to the best of my knowledge, belief and information, from para- to are based on the advise of the counsel.
- The annexure A to F are true copies of there respective originals
Hence this affidavit.
Date:
Place: Kalaburagi.
No. of Corrs ( )
Identified by me
Advocate
