National Green Tribunal
Jeetu Yadav vs Up State Pollution Control Board ... on 21 December, 2023
Item No. 06 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 889/2022
(I.A. No. 321/2022)
Jeetu Yadav Applicant
Versus
U.P. Pollution Control Board & Ors. Respondent(s)
Date of hearing: 21.12.2023
CORAM: HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
Respondents: Mr. Pradeep Misra & Mr. Daleep Dhyani, Advs. for UPPCB (Through VC)
Mr. Arvind Kumar, Adv. for UPPCB (Through VC)
Mr. Manish Bansal, DM, Sambhal (Through VC)
Mr. Satyam Mishra, ADM, Moradabad (Through VC)
Mr. Surendra Singh, ADM, Amroha (Through VC)
P
ORDER
1. In the original application the grievance was raised in respect of illegally operating brick kilns in Districts of Moradabad, Sambhal, Rampur and Amorha with the allegation that these brick kilns were causing huge air pollution and the concerned authorities were not taking any appropriate action.
2. The Tribunal, after considering the issue in detail, by order dated 14.12.2022, had noted that substantial issue relating to implementation of Scheduled enactment under the National Green Tribunal Act, 2010 was involved in the matter. Accordingly, the Tribunal had constituted a joint Committee and had called for the factual report.
3. Two reports dated 10.02.2023 and 15.04.2023 were considered by Tribunal in the proceedings dated 06.10.2023 and it was noted that in 1 Districts Moradabad 72, Rampur 26, Sambhal 108 and Amroha 75 defaulting brick kilns were found to be operating. It was further noted that these brick kilns were out of those which were inspected and they did not include the number of such brick kilns illegally operating which were not inspected. It was further noted that in Moradabad 64, Rampur 26, Sambhal 104 and Amroha 71 brick kilns were found to be operating even in violation of the closure orders issued earlier.
4. The Tribunal had also noted that though the environmental compensation was levied but the same was not recovered and this fact was admitted by the Member Secretary, Uttar Pradesh Pollution Control Board (UPPCB) who had joined the proceedings online through video conference on 06.10.2023. The Member Secretary had expressed his inability to recover the compensation, therefore, the Tribunal in the proceedings dated 06.10.2023 had observed as under:
"6. The Member Secretary, State PCB who has joined online through video conference, has candidly admitted that till now, no environmental compensation amount has been recovered. He has submitted that by virtue of very nature of the brick kilns which are not using electricity or water, the PCB is unable to take effective action particularly with reference to closure their operation. We find that such a helplessness indicated during the VC does not justify the reflected inaction on the part of the concerned authorities.
7. The report also contains other charts in respect of the defaulting brick kilns in Sambhal, Rampur and Amroha reflecting the similar position.
8. So far as the issue of implementing the orders of closure passed against illegally operating brick kilns, the stand of the Member Secretary, State PCB is that the communication for closure was sent to the concerned District Magistrates who were required to take action. The responsibility of the officers of the State PCB does not end merely be sending communication alone but they are required to act in terms of the powers which have been conferred upon them under the provisions of the Act.
9. Hence, we direct the UPPCB to take action in accordance with law, to submit a fresh action taken report and clearly disclose the steps which are taken for closure of the units operating without consent to operate and in violation of law and also the action which 2 is taken for levy and recovery of environmental compensation from the brick kilns which were found to be illegally operating."
5. Considering the above aspect, the Tribunal had also issued notice to the District Magistrates of Moradabad, Sambhal, Rampur and Amroha to submit the report before the Tribunal in respect of action of closure of illegally operating brick kilns in compliance of the closure orders of the UPPCB and also recovery of environmental compensation imposed by concerned officers of the UPPCB and accordingly had called for the report from the UPPCB and District Magistrates of Moradabad, Sambhal, Rampur and Amroha.
6. After the previous order, the report dated 19.12.2023 has been filed on behalf of UPPCB. A perusal of the said report reveals that in District Moradabad 72 defaulter brick kilns were found to be actually operating and out of which 64 were operating in violation of closure order issued earlier and 08 were found to be operating without prior CTO. In respect of Rampur, 26 defaulter brick kilns were found to be in operation, out of which 15 were operating in violation of closure orders issued earlier and 11 were found to be operating without prior CTO. In respect of Sambhal, 108 defaulter brick kilns were found to be operating, out of which 104 were operating in violation of closure orders issued earlier and 04 were found to be operating without prior CTO. In respect of Amroha, 75 defaulter brick kilns were found to be operating, out of which 71 were operating in violation of closure orders issued earlier and 04 were operating without prior CTO.
7. A perusal of the report further reveals that in respect of District Moradabad, environmental compensation of Rs. 59.3 crores against 72 defaulter brick kilns has been imposed, in respect of District Rampur, environmental compensation of Rs. 19.57 crores against 26 defaulter brick 3 kilns has been imposed, in respect of District Sambhal, environmental compensation of Rs. 52.62 crores and in respect of District Amroha, environmental compensation of Rs. 27.56 crores has been imposed. The said environmental compensation has not been recovered till now. A perusal of the record reveals that the Member Secretary, UPPCB has sent letter dated 23.11.2023 to District Magistrate, Moradabad for recovery of environmental compensation. Similar even dated letters have been issued in respect of Rampur and other districts also.
8. Initially, submission of Shri Arvind Kumar, learned Counsel appearing for UPPCB was that the amount is to be recovered on the basis of the recovery certificate, but when the Tribunal asked him about authority who has to issue recovery certificate, he did not dispute that the same is to be issued by the competent officers of the UPPCB.
9. Shri Pradeep Misra, learned Counsel has also appeared on behalf of UPPCB and arguing on the issue of recovery of environmental compensation. He has submitted that communication dated 23.11.2023 sent by Member Secretary, UPPCB to the concerned District Magistrates is an order issued by the Board under Section 31A of Air (Prevention and Control of Pollution), 1981 (Air Act). Undisputedly, the communications/orders issued by the Member Secretary to concerned District Magistrates under Section 31A of the Air Act have not been complied with. The consequence of non-compliance of the direction issued under Section 31A of the Air Act is provided under Section 37 of the Air Act as under:
"37. Failure to comply with the provisions of section 21 or section 22 or with the directions issued under section 31A.--(1) whoever fails to comply with the provisions of section 21 or section 22 or directions issued under section 31A, shall, in respect of each such failure, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with 4 fine, and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction for the first such failure.
(2) If the failure 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 shall not be less than two years but which may extend to seven years and with fine."
10. If we accept the submission of Shri Pradeep Misra that the communication sent by Member Secretary, UPPCB to the concerned District Magistrates of Moradabad, Sambhal, Rampur and Amroha are orders under Section 31A of the Air Act, then for non-compliance of the said order the competent officers of UPPCB are required to take action under Section 37 of the Air Act. In both the eventualities, either through issuance of recovery certificate by the competent officer of UPPCB or issuing direction in terms of Section 31A of Air Act, if there is an inaction by the authorities then the action is required to be taken in terms of provisions noted above by competent authority of UPPCB which they have failed to take till now.
11. A submission has also been made by Shri Pradeep Misra, learned Counsel for UPPCB that for initiating action of prosecuting the concerned District Magistrates for non-compliance of the orders under Section 31A, the sanction is required. In this regard, we have been pointed out the order of the Tribunal dated 11.08.2023 passed in OA No. 07/2018(CZ), in the matter of M.Y. Chaudhary vs. Bhopal Municipal Corporation & Others, wherein the Tribunal has held as under:
"156. We may also observe that the cognizance can be taken by Magistrate of offence without insisting for sanction under Section 197 Cr.P.C. since Supreme Court in V.C. Chinnappa Goudar vs. Karnataka State Pollution Control Board & Anr., (2015) 14 SCC 535 and Noorulla Khan vs. Karnataka State Pollution Control Board & Anr., (2021) SCC OnLine SC 601 has held that Section 197 is not attracted for offences when prosecution is initiated under Water Act, 1974 against the public servants with reference to Sections 47 and 48 of Water Act, 1974.5
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159. The provisions of EP Act, 1986 are also pari materia with the provisions of Water Act, 1974 in as much as Sections 47 and 48 of Water Act, 1974 are similar to Sections 16 and 17 of EP Act, 1986."
12. Shri Pradeep Misra, learned Counsel appearing for UPPCB is not in a position to state as to how long the officers of UPPCB to take action for recovery of the amount. He has sought time to obtain instructions.
13. We are of the opinion that the environmental compensation which is imposed is required to be recovered and prompt action is required to be taken by competent officers of UPPCB. Hence, they are granted three weeks' time to take appropriate action in this regard and file action taken report on or before the expiry of said three weeks period.
14. On the issue of closure of defaulting brick kilns, we find that a chart has been enclosed as Annexure 3 along with report. The said chart in respect of Moradabad mentions closure dates from 2017 and 2018 onwards in respect of several units. It is undisputed before this Tribunal that though these brick kilns were closed as far back as in 2017 and 2018 etc. but they are still operating. Nothing significant has been pointed out by Counsel for UPPCB to show that the units are not operating after the closure order. On the contrary admittedly, the units are operating. Hence, a clear report in this regard must be filed by the competent officer of UPPCB mentioning if the brick kilns in question are in a position to operate or have been demolished. The same position in respect of closure and operation of brick kilns after the closure order exists in respect of other districts also, therefore, competent officer of UPPCB will file a fresh action taken report within two weeks in respect of all the districts keeping in view the observations made above.
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15. The Tribunal by previous order dated 06.10.2023 had also issued notice to the District Magistrates of Moradabad, Sambhal, Rampur and Amroha with a direction to submit a report before the Tribunal in respect of action of closure of illegally operating brick kilns in compliance of the closure orders of UPPCB and also recovery of environmental compensation imposed by concerned officers of UPPCB. Except for District Magistrate, Sambhal, no other District Magistrates has filed the reply. Instead of District Magistrate, Additional District Magistrates of Moradabad and Amroha has appeared virtually and District Magistrate, Rampur has not appeared even virtually. The notice from the Tribunal was served upon all these four District Magistrates on 18.10.2023, yet the report in terms of directions of the Tribunal dated 06.10.2023 have not been filed till now. There is also no application for extension of time to file the report and the Additional District Magistrates appearing on behalf of District Magistrates, Moradabad and Amroha have also not disclosed any cogent reason for not filing the report till now, but have only prayed for time to file the reports.
16. In the circumstances of the case, we grant two weeks' time to the District Magistrates, Moradabad, Rampur and Amroha to file their reports within two weeks, subject to deposit of cost of Rs. 5,000/- each within a period of two week before the Registrar General of the Tribunal.
17. List the matter on 15.01.2024.
Prakash Shrivastava, CP Sudhir Agarwal, JM Dr. A. Senthil Vel, EM December 21, 2023 Original Application No. 889/2022 DV.
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