National Green Tribunal
Joydeep Mukherjee S/O Late ... vs Union Of India Through Secretary ... on 20 September, 2021
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
Item No. 01 (Court No.1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Original Application No. 10/2016/EZ
Joydeep Mukharjee Applicant
Versus
UOI & Ors. Respondent(s)
Date of hearing: 20.09.2021
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
Applicant(s) Mr. S. K Bhattacharya, Advocate for applicant
Respondent(s) Ms. Madhumita Bhattacharjee, Advocate for the State of West
Bengal
Mr. Gora Chand Roy Choudhury, Advocate for R-1
Mr. Dipanjan Ghosh, Advocate for R-3
Mr. Soumya Dasgupta, Advocate for R-4
Mr. Ashok Kumar Banerjee, Sr. Advocate with
Ms. Paushali Banerjee, Advocate R-5
Mr. Probal Kumar Mukherjee, Advocate, Sr. Advocate with
Ms. Arpita Chowdhury, Advocate for R-6
ORDER
1. Grievance in this application is against pollution of Mahananda, Jorapani, Phuleswari Rivers in Siliguri area in District Darjeeling, West Bengal.
2. According to the applicant, the Central Government sanctioned a sum of Rs. 54 Crores and 28 Lakhs for implementing Mahananda Action Plan in the year 2005 for treatment of sewage and other steps to prevent pollution of rivers, which is an offence under Section 24 of the Water (Prevention and Control of Pollution) Act, 1974 (Water Act). The Siliguri 1 Municipal Corporation failed to discharge its constitutional obligation to prevent and remedy pollution to enforce the rights of citizens to clean environment. Sewage, garbage, plastic and other pollution is continuing in the rivers.
3. We note that this application was filed on 19.01.2016 before the Eastern Zone Bench of this Tribunal at Kolkata and has been pending for more than five years. During last five years, this Tribunal has been passing directions to prevent and remedy pollution but there is hardly any compliance. Reference may be made to some of the significant orders passed so far. On 02.03.2016, taking note of the grievance, while directing copies of the application be served on the contesting respondents, the Tribunal directed as follows:-
"In the meantime, the respondents specially Chief Secretary, Govt. of West Bengal, Municipal Commissioner, Siliguri Municipal Corporation, Member Secretary, Siliguri Jalpaiguri Development Authority and PCB are directed to take all steps and measures in accordance with law so that the water of the rivers Mahananda, Jorapani and Phuleswari is not polluted further and to take steps for removing all plastic and garbage and other materials which are polluting the water of the aforesaid rivers as stated and action taken report be filed in the form of an affidavit before the next date. This order is peremptory considering the serious nature of pollution of the rivers in question."
4. Vide order dated 17.10.2016, the Tribunal noted the stand of the Siliguri Jalpaiguri Development Authority (SJDA) that allotted funds have been utilized for abatement of pollution. Finding the said statement to be vague, the Tribunal required details of the expenditure and steps taken. Further directions were issued inter-alia on 10.02.2017, 17.03.2017, 17.05.2017, 27.07.2017, 13.11.2017, 19.04.2018, 20.04.2018, 01.06.2020, 22.07.2020, 06.01.2021, 13.07.2021 and lastly on 16.08.2021.
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5. We may only refer to last two orders. Vide order dated 13.07.2021, the Tribunal directed as follows:-
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10. We, therefore, direct the Chief Secretary, Government of West Bengal to take up these issues with the Secretary, Department of Urban Development and Municipal Affairs as well as Secretary, Irrigation and Waterways Department to resolve the outstanding issues pertaining to the above case at the earliest.
11. The Siliguri Municipal Corporation shall also direct the removal of the encroachments which have not been done so far, as a result of which the Irrigation and Waterways Department could not complete the remaining work of construction of boundary wall on the banks of Mahananda River. The Siliguri Municipal Corporation is also directed to give a timeline for removal of encroachments to enable completion of work of boundary wall on both banks of the Mahananda River.
12. We, accordingly, direct that the Chief Secretary, Government of West Bengal, Secretary, Irrigation and Waterways Department, Government of West Bengal, Secretary, Department of Urban Development and Municipal Affairs, Government of West Bengal, Member Secretary, Siliguri Jalpaiguri Development Authority, and Commissioner, Siliguri Municipal Corporation to file their respective affidavits giving all the details of current status including timelines for completion of all the works to this Tribunal within four weeks.
13. List on 16.08.2021."
6. Vide order dated 16.08.2021, the Tribunal observed:-
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3. In compliance of the directions given by this Tribunal vide its order dated 13.07.2021, Mr. Sonam Wangdi Bhutia, Commissioner, Siliguri Municipal Corporation is present before the Tribunal.
4. Mr. Soumya Das Gupta, learned Counsel submits that the bank draft has been prepared in the name of the Registrar, NGT, Eastern Zone, Kolkata but he was informed that there is no such bank account and that the bank account is in the name of Registrar, NGT payable at New Delhi. Let him present fresh draft for the purpose with the name of the correct party within one week.
5. An affidavit with the current status report has been filed by the Respondent No.4-Siliguri Municipal Corporation stating that the Joint Inspection/Joint Field Survey was carried out of the site on 03.08.2021 and again on 06.08.2021 and it was observed that there are about 88 plots/encroachments which are required to be removed/demolished and those structures are mainly kuccha structures with few pucca structures and it is also stated that there are two temples at the site. The Commissioner who is present 3 before us informs that notices have been given to the encroachers on 10.08.2021 giving them thirty days to remove their illegal encroachments.
6. In paragraph 8 of the affidavit apprehension has been expressed that even after removal of the encroachment there may be re-encroachments and its resultant problems and if help is provided by the Civil Administration, the Siliguri Municipal Corporation will be able to remove the encroachments with the help of men and machinery subject to availability of Police Force.
7. We, accordingly, direct the Commissioner of Police, Siliguri Metropolitan Commissionerate, District Magistrate, Darjeeling and District Magistrate, Jalpaiguri to provide all assistance to the Commissioner, Siliguri Municipal Corporation in the matter of removal of illegal encroachments as and when request would be made in this regard.
8. With the above observations, we dispense the personal appearance of Mr. Sonam Wangdi Bhutia, Commissioner, Siliguri Municipal Corporation from future appearance unless specifically required. He shall however file affidavit of compliance before the next date of listing.
9. So far as the construction of STP-I, STP-II and STP-III are concerned an affidavit dated 11.08.2021 page No. 1182 of the paper-book has been filed by the Urban Development & Municipal Affairs Department, Government of West Bengal and in paragraph 3 thereof it is stated that the Urban Development & Municipal Affairs Department, Government of West Bengal after processing the project cost amounting to Rs. 62,18,27,777/- (Rupees Sixty Two Crores Eighteen lakhs Twenty Seven Thousand Seven Hundred and Seventy Seven only) has forwarded the proposal to the Finance Department, Government of West Bengal for necessary approval and the matter is pending with the Finance Department but the date when this proposal was sent has not been mentioned. It is also stated that the Detailed Project Report (DPR) was prepared and approved around 12.02.2021.
10. We, accordingly, direct the Additional Chief Secretary, Department of Finance, Government of West Bengal to take a decision in this matter expeditiously preferably within one month.
11. Ms. Arpita Chowdhury, learned Counsel appearing on behalf of the Siliguri Jalpaiguri Development Authority has presented the technical summary of STPs-II and III only but with regard to STP-I she has referred to the affidavit dated 09.07.2020 page No. 530 of the paper-book and submits that the matter is delayed as acquisition of site for STP-I has not been finalized. So far as STPs-II and III are concerned the DPR has already been vetted and financial sanction is awaited. However, it is not clear whether the land for construction of STP-I has been acquired or not or what is the problem in acquisition of land for construction of STP-I.
12. Ms. Arpita Chawdhury, learned Counsel prays for and is granted two weeks time for filing supplementary affidavit providing current status information with regard to impediments in 4 establishment of STP-I faced by the Siliguri Jalpaiguri Development Authority.
13. Mr. Bikas Kargupta, learned Counsel submits that work with regard to protection of both banks of river Mahananda at the upstream and downstream for a total length of 11 kms. starting from Champasari Road Bridge to Nauka Ghat Road is to be completed in a Phased Manner as soon as encroachers are removed. The matter of removal of encroachers shall be taken care of by the Commissioner, Siliguri Municipal Corporation who is already present before us and for which we have already given directions therein above.
14. A fresh affidavit dated 13.08.2021 has been filed and it is stated that the first phase of the work for a length of 1.28 km both upstream and downstream of the Hill Cart Road Bridge has already been executed.
15. So far as the second phase is concerned, the total length of 1.4 km on the bank of the river at downstream of Champasari Road Bridge has also been completed.
16. So far as the stretch of 3 km on both banks of the river at location namely Bagha Jatin Colony, under P.S.-Pradhannagar, Laxmi Colony, under P.S.-Bhaktinagar, District Jalpaiguri and Jyotinagar Colony and Kholai Baktiar under P.S.-Matigara is concerned the same has been approved and the tender process is completed and work order may be issued within August, 2021 and the work is expected to be completed by May, 2022.
17. So far as the fourth phase for the balance of 5.32 km stretch of land encroached under Santoshinagar, Ganganagar area under P.S.-Siliguri and Binoykrishnapally, Kolabasti Area at P.S.-Matigara, District Darjeeling and Natunpara, Pradipnagar area under P.S.- Bhaktinagar, District Jalpaiguri is concerned, it is stated that the Detailed Project Report (DPR) has already been submitted to the Department of Irrigation for administrative approval and as soon as approval is obtained the execution of the work of the said 5.32 km would be taken up.
18. We, therefore, direct the work in this regard should be completed positively by 31.03.2022 by which time the encroachers and unauthorized structures will be removed by the Siliguri Municipal Corporation."
7. We may now refer to some of the affidavits filed on behalf of the respondents. The compliance report of the Chief Secretary dated 15.02.2021 is that the DPR, prepared by the SJDA for STP and other works, has been vetted by the Kolkata Metropolitan Development Authority (KMDA). The Irrigation and Water Works Department will execute bank protection work on the banks of the river Mahananda for 5 11 KMs. Some work has been done and DPR has been prepared for the remaining.
8. Compliance affidavit filed by the Urban Development and Municipal Affairs Department, West Bengal on 11.08.2021 is that SJDA has prepared DPR for the STPs which has been vetted by the KMDA and submitted to Urban Development Department for approval.
9. There is a supplementary status report filed by the SJDA that Mahananda river is tributary of Ganga which also flows through Nepal and Bangladesh. Stretch of the river adjacent to Siliguri is highly polluted. An Action Plan has been prepared for setting of STP. The same is held up for non-availability of land or other resources.
10. A status report has been filed by the Municipal Corporation on 17.08.2021 that the work is held up for want of Administrative and Financial approval from the Department of Urban Development and Municipal affairs.
11. Thus, though the matter has been pending for the last five years and number of orders have been passed, the remedial steps are hardly adequate. The matter has thus been put up before this Special Bench.
12. We have heard learned counsel for the applicant as well as learned counsel for the State. It is made clear that UOI has no role in the matter and appearance of counsel for UOI is unnecessary.
13. We find the situation to be disturbing. Water pollution is a crime under the Indian Penal Code and the Water Act, to which a State governed by the Constitution cannot be a party, there being constitutional obligation on the State and its Authorities to protect the 6 environment and public health. The matter assumes higher significance in view of the river being tributary of Ganga which has cultural and religious significance for the lives of the citizens in India. It is well known that out of reverence the Ganga water is consumed which, if polluted, adversely affects health.
14. As earlier mentioned, contamination of water sources is a punishable offence under the Water (Prevention and Control of Pollution) Act, 1974 for the last 47 years. Under Section 25 of the Act, untreated discharge of sewage in any drain is prohibited and is criminal offence under Sections 42(2) and 44. Section 48 of the Act makes the Head of the Department liable for being punished for such offence. As per directions of the Hon'ble Supreme Court in Paryavaran Suraksha case,1 an outer limit of 31.03.2018 is fixed for completing the work of all STPs in the Country. The Court laid down the sources of budget and issued direction to initiate prosecution for continued failure with direction to the Tribunal to take steps for enforcement of the said direction. Accordingly, the Tribunal has passed several orders, including the order for recovery of compensation and entries in ACRs, after calling the Chief Secretaries of all States before the Tribunal in person. Specific directions of the Hon'ble Supreme Court and this Tribunal on the subject are reproduced below:
Extracts from the judgement of the Hon'ble Supreme Court in Paryavaran Suraksha Samiti Vs. Union of India, supra "7. Having effectuated the directions recorded in the foregoing paragraphs, the next step would be, to set up common effluent treatment plants. We are informed, that for the aforesaid purpose, the financial contribution of the Central Government is to the extent of 50%, that of the State Government concerned (including the Union Territory concerned) is 25%. The balance 25%, is to be 1 (2017) 5 SCC 326 7 arranged by way of loans from banks. The above loans, are to be repaid, by the industrial areas, and/or industrial clusters. We are also informed that the setting up of a common effluent treatment plant, would ordinarily take approximately two years (in cases where the process has yet to be commenced).
The reason for the above prolonged period, for setting up "common effluent treatment plants", according to the learned counsel, is not only financial, but also, the requirement of land acquisition, for the same.
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10. Given the responsibility vested in municipalities under Article 243-W of the Constitution, as also, in Item 6 of Schedule XII, wherein the aforesaid obligation, pointedly extends to "public health, sanitation conservancy and solid waste management", we are of the view that the onus to operate the existing common effluent treatment plants, rests on municipalities (and/or local bodies). Given the aforesaid responsibility, the municipalities (and/or local bodies) concerned, cannot be permitted to shy away from discharging this onerous duty. In case there are further financial constraints, the remedy lies in Articles 243-X and 243-Y of the Constitution. It will be open to the municipalities (and/or local bodies) concerned, to evolve norms to recover funds, for the purpose of generating finances to install and run all the "common effluent treatment plants", within the purview of the provisions referred to hereinabove. Needless to mention that such norms as may be evolved for generating financial resources, may include all or any of the commercial, industrial and domestic beneficiaries, of the facility. The process of evolving the above norms, shall be supervised by the State Government (Union Territory) concerned, through the Secretaries, Urban Development and Local Bodies, respectively (depending on the location of the respective common effluent treatment plant). The norms for generating funds for setting up and/or operating the "common effluent treatment plant" shall be finalised, on or before 31-3-2017, so as to be implemented with effect from the next financial year. In case, such norms are not in place, before the commencement of the next financial year, the State Governments (or the Union Territories) concerned, shall cater to the financial requirements, of running the "common effluent treatment plants", which are presently dysfunctional, from their own financial resources.
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11. Just in the manner suggested hereinabove, for the purpose of setting up of "common effluent treatment plants", the State Governments concerned (including, the Union Territories concerned) will prioritise such cities, towns and villages, which discharge industrial pollutants and sewer, directly into rivers and water bodies.
12. We are of the view that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We, therefore, hereby direct that "sewage treatment plants" shall also be set up and made functional, within the timelines and the format, expressed hereinabove.
13. We are of the view that mere directions are inconsequential, unless a rigid implementation mechanism is laid down. We, therefore, hereby provide that the directions pertaining to continuation of industrial activity only when there is in place a functional "primary effluent treatment plants", and the setting up of functional "common effluent treatment plants" within the timelines, expressed above, shall be of the Member Secretaries of the Pollution Control Boards concerned. The Secretary of the Department of Environment, of the State Government concerned (and the Union Territory concerned), shall be answerable in case of default. The Secretaries to the Government concerned shall be responsible for monitoring the progress and issuing necessary directions to the Pollution Control Board concerned, as may be required, for the implementation of the above directions. They shall be also responsible for collecting and maintaining records of data, in respect of the directions contained in this order. The said data shall be furnished to the Central Ground Water Authority, which shall evaluate the data and shall furnish the same to the Bench of the jurisdictional National Green Tribunal.
14. To supervise complaints of non-implementation of the instant directions, the Benches concerned of the National Green Tribunal, will maintain running and numbered case files, by dividing the jurisdictional area into units. The abovementioned case files will be listed periodically. The Pollution Control Board concerned is also hereby directed to initiate such civil or criminal action, as may be permissible in law, against all or any of the defaulters.
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16. It however needs to be clarified, that the instant directions and time lines, shall not in any way dilute any time lines and directions issued by Courts or Benches of the National Green Tribunal, hitherto before, wherein the postulated time lines would expire before 9 the ones expressed through the directions recorded above. It is clarified, that the time lines, expressed hereinabove will be relevant, only in situations where there are no prevalent time line(s), and also, where a longer period, has been provided for."
(emphasis supplied) Extracts from orders of this Tribunal in OA 593/2017 :
Order dated 21.05.2020
26. Summary of directions:
i. All States/UTs through their concerned departments such as Urban/Rural Development, Irrigation & Public Health, Local Bodies, Environment, etc. may ensure formulation and execution of plans for sewage treatment and utilization of treated sewage effluent with respect to each city, town and village, adhering to the timeline as directed by Hon'ble Supreme Court. STPs must meet the prescribed standards, including faecal coliform.
CPCB may further continue efforts on compilation of River Basin-wise data. Action plans be firmed up with Budgets/Financial tie up. Such plans be overseen by Chief Secretary and forwarded to CPCB before 30.6.2020. CPCB may consolidate all action plans and file a report accordingly.
Ministry of Jal Shakti and Ministry of Housing and Urban Affairs may facilitate States/UTs for ensuring that water quality of rivers, lakes, water bodies and ground water is maintained.
As observed in para 13 above, 100% treatment of sewage/effluent must be ensured and strict coercive action taken for any violation to enforce rule of law. Any party is free to move the Hon'ble Supreme Court for continued violation of its order after the deadline of 31.3.2018. This order is without prejudice to the said remedy as direction of the Hon'ble Supreme Court cannot be diluted or relaxed by this Tribunal in the course of execution. PCBs/PCCs are free to realise compensation for violations but from 1.7.2020, such compensation must be realised as per direction of this Tribunal failing which the erring State PCBs/PCCs will be accountable."
Order dated 21.09.2020 "11. The Tribunal has already issued directions vide orders dated 28.08.2019 and 21.05.2020 for ensuring that no untreated sewage/effluent is discharged into any water body and for any violation compensation is to be assessed and recovered by the CPCB so that the same can be utilized for restoration of the environment, 10 complying with the principle of 'Polluter Pays' which has been held to be part of 'Sustainable Development' and part of right to life.
Control of such pollution is crucial for environment, aquatic life, food safety and also human health. .."
From OA 673/2018 Order dated 6.12.19:
6. The Hon'ble Supreme Court noticed the level of degradation of rivers in India and apathy of the authorities as follows:
"58. Rivers in India are drying up, groundwater is being rapidly depleted, and canals are polluted. Yamuna in Delhi looks like a black drain. Several perennial rivers like Ganga and Brahmaputra are rapidly becoming seasonal. Rivers are dying or declining, and aquifers are getting over pumped. Industries, hotels, etc. are pumping out groundwater at an alarming rate, causing sharp decline in the groundwater levels. Farmers are having a hard time finding groundwater for their crops e.g. in Punjab. In many places there are serpentine queues of exhausted housewives waiting for hours to fill their buckets of water. In this connection John Briscoe has authored a detailed World Bank Report, in which he has mentioned that despite this alarming situation there is widespread complacency on the part of the authorities in India.2 "4. We see Yamuna river virtually turned into a sullage. We take judicial notice of this situation. Similar is the position with Ganges. As it proceeds, industrial effluents are being poured in rivers. Sewage is also being directly put in rivers contributing to the river water pollution. We direct the Pollution Control Boards of the various States as well as the Central Pollution Control Board and various Governments to place before us the data and material with respect to various rivers in the concerned States, and what steps they are taking to curb the pollution in such rivers and to management as to industrial effluents, sewage, garbage, waste and air pollution, including the water management. We club the ending case of water management with this matter.3 xxx.........................................xxx..........................xxx
11. In spite of above, in flagrant violation of law of the land, polluted water in the form of sewage, industrial effluents or otherwise has continued to be discharged in the water bodies including the rivers or the canals meeting the rivers. Violation of law is not only by private citizens but also statutory bodies including the local bodies and also failure of the regulatory authorities in taking 2 State of Orissa v. Govt. of India, (2009) 5 SCC 492 3 M.C. Mehta Vs Union of India- W.P. (Civil) No. 13029/1985 dated 25.11.2019 11 adequate steps. There is no corresponding coercive action posing danger to rule of law when large scale violation of law is not being remedied. This leads to lawlessness.
12. It will be appropriate to note the crisis situation in the country on the subject of availability of potable water. The matter has been considered in the report of Niti Aayog on Composite Water Management Index (CWMI).4 Following further information also needs to be noted:
(i) India is suffering from the worst water crisis in its history and millions of lives and livelihoods are under threat. Currently, 600 million Indians face high to extreme water stress and about two lakh people die every year due to inadequate access to safe water5. The crisis is only going to get worse. By 2030, the country's water demand is projected to be twice the available supply, implying severe water scarcity for hundreds of millions of people and an eventual ~6% loss in the country's GDP6. As per the report of National Commission for Integrated Water Resource Development of MoWR, the water requirement by2050 in high use scenario is likely to be a milder 1,180 BCM, whereas the present-day availability is 695BCM. The total availability of water possible in country is still lower than this projected demand, at 1,137BCM. Thus, there is an imminent need to deepen our understanding of our water resources and usage and put in place interventions that make our water use efficient and sustainable.
(ii) India is undergoing the worst water crisis in its history.
Already, more than 600 million people7 are facing acute water shortages. Critical groundwater resources - which account for 40% of our water supply - are being depleted at unsustainable rates.8
(iii) Most states have achieved less than 50% of the total score in the augmentation of groundwater resources, highlighting the growing national crisis--54% of India's groundwater wells are declining, and 21 major cities are expected to run out of groundwater as soon as 2020, affecting ~100 million people9.
(iv) With nearly 70% of water being contaminated, India is placed at 120th amongst 122 countries in the water quality index.
13. As per statistics mentioned before the Lok Sabha on April 6, 2018, waterborne diseases such as cholera, acute diarrhoeal diseases, typhoid and viral hepatitis continue to be prevalent in India and have caused 10,738 deaths, over the last five years since 2017. Of this, acute diarrhoeal diseases caused maximum deaths followed by viral hepatitis, typhoid and cholera.10 4 Niti Ayog on "Composite Water Management Index", June 2018, https://niti.gov.in/writereaddata/files/document_publication/2018-05-18-Water-Index- Report_vS8-compressed.pdf.
5Source: WRI Aqueduct; WHO Global Health Observatory 6Source: McKinsey & WRG, 'Charting our water future', 2009; World Bank; Times of India 7 Source: World Resource Institute 8 Source: World Resource Institute 9 Source: UN Water, 'Managing water under uncertainty and risk', 2010; World Bank (Hindustan Times, The Hindu).
10https://www.indiaspend.com/diarrhoea-took-more-lives-than-any-other-water-borne- disease-in-india-58143/ 12
14. As per 'National Health Profile' published by Central Bureau of Health Investigation, Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India, a total of 1535 Deaths due to Acute Diarrhoeal Diseases was reported during the year 2013.11 Main Causes of Pollution of Rivers
15. As already noted, well known causes of pollution of rivers are dumping of untreated sewage and industrial waste, garbage, plastic waste, e-waste, bio-medical waste, municipal solid waste, diversion of river waters for various purposes affecting e-flow, encroachment of catchment areas and floodplains, over drawl of groundwater, river bank erosion on account of illegal sand mining. Inspite of directions to install Effluent Treatment Plants (ETPs), Common Effluent Treatment Plants (CETPs), Sewage Treatment Plants (STPs), and adopting other anti-pollution measures, satisfactory situation has not been achieved. As per CPCB's report 201612, it has been estimated that 61,948 million liters per day (mld) sewage is generated from the urban areas of which treatment capacity of 23,277 mld is currently existent in India. Thereby the deficit in capacity of waste treatment is of 62%. There is no data available with regard to generation of sewage in the rural areas.
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33. We may note the observations of the Hon'ble Supreme Court:
"26. Enactment of a law, but tolerating its infringement, is worse than not enacting a law at all. The continued infringement of law, over a period of time, is made possible by adoption of such means which are best known to the violators of law. Continued tolerance of such violations of law not only renders legal provisions nugatory but such tolerance by the enforcement authorities encourages lawlessness and adoption of means which cannot, or ought not to, be tolerated in any civilized society. Law should not only be meant for the law-abiding but is meant to be obeyed by all for whom it has been enacted. A law is usually enacted because the legislature feels that it is necessary. It is with a view to protect and preserve the environment and save it for the future generations and to ensure good quality of life that Parliament enacted the anti-pollution laws, namely, the Water Act, Air Act and the Environment (Protection) Act, 1986. These Acts and Rules framed and notification issued thereunder contain provisions which prohibit and/or regulate certain activities with a view to protect and preserve the environment. When a law is enacted containing some provisions which prohibit certain types of activities, then, it is of utmost importance that such legal provisions are effectively enforced. If a law is enacted but is not being voluntarily obeyed, then, it has to be enforced. Otherwise, infringement of law, which is actively or passively condoned for personal 11 http://pib.nic.in/newsite/PrintRelease.aspx?relid=106612 12 http://www.sulabhenvis.nic.in/Database/STST_wastewater_2090.aspx July 16, updated on December 6, 2016 13 gain, will be encouraged which will in turn lead to a lawless society. Violation of anti-pollution laws not only adversely affects the existing quality of life but the non-enforcement of the legal provisions often results in ecological imbalance and degradation of environment, the adverse effect of which will have to be borne by the future generations.13 xxx.....................xxx.................................xxx "61. ..... If the laws are not enforced and the orders of the courts to enforce and implement the laws are ignored, the result can only be total lawlessness. It is, therefore, necessary to also identify and take appropriate action against officers responsible for this state of affairs. Such blatant misuse of properties at large-scale cannot take place without connivance of the officers concerned. It is also a source of corruption. Therefore, action is also necessary to check corruption, nepotism and total apathy towards the rights of the citizens."14 xxx.........................................xxx..........................xxx
35. Vide order dated 22.08.2019 in Original Application 200/2014, dealing with the pollution of river Ganga, the Tribunal issued directions and laid down coercive measures to be taken for discharge of untreated sewage in river Ganga:-
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17. Wherever the work has not commenced, it is necessary that no untreated sewage is discharged into the River Ganga. Bioremediation and/or phytoremediation or any other remediation measures may start as an interim measure positively from 01.11.2019, failing which the State may be liable to pay compensation of Rs. 5 Lakhs per month per drain to be deposited with the CPCB. This however, is not to be taken as an excuse to delay the installation of STPs. For delay of the work, the Chief Secretary must identify the officers responsible and assign specific responsibilities. Wherever there are violations, adverse entries in the ACRs must be made in respect of such identified officers. For delay in setting up of STPs and sewerage network beyond prescribed timelines, State may be liable to pay Rs. 10 Lakhs per month per STP and its network. It will be open to the State to recover the said amount from the erring officers/contractors.
36. Vide order dated 28.08.2019, the Tribunal held:-
"15. xxx...............xxx.......................................xxx 13 INDIAN COUNCIL FOR ENVIRO-LEGAL ACTION Vs. UNION OF INDIA AND OTHERS (1996) 5 SCC 281 14 M.C. Mehta v. Union of India, (2006) 3 SCC 399 - Public functionaries 14 "16. xxx.....................xxx.................................xxx
17. As already noted, prevention of pollution of water is directly linked to access to potable water as well as food safety. Restoration of pristine glory of rivers is also of cultural and ecological significance. This necessitates effective steps to ensure that no pollution is discharged in water bodies. Doing so is a criminal offence under the Water Act and is harmful to the environment and public health. 'Precautionary' principle of environmental law is to be enforced. Thus, the mandate of law is that there must be 100% treatment of sewage as well as trade effluents. This Tribunal has already directed in the case of river Ganga that timelines laid down therein be adhered to for setting up of STPs and till then, interim measures be taken for treatment of sewage. There is no reason why this direction be not followed, so as to control pollution of all the river stretches in the country. The issue of ETPs/CETPs is being dealt with by an appropriate action against polluting industries. Setting up of STPs and MSW facilities is the responsibility of Local Bodies and in case of their default, of the States. Their failure on the subject has to be adequately monitored. Recovery of compensation on 'Polluter Pays' principle is a part of enforcement strategy but not a substitute for compliance. It is thus necessary to issue directions to all the States/UTs to enforce the compensation regime, latest with effect from 01.04.2020. We may not be taken to be condoning any past violations. The States/UTs have to enforce recovery of compensation from 01.04.2020 from the defaulting local bodies. On failure of the States/UTs, the States/UTs themselves have to pay the requisite amount of compensation to be deposited with the CPCB for restoration of environment. The Chief Secretaries of all the States may furnish their respective compliance reports as per directions already issued in O.A. No. 606/2018."
15. We note that the Chief Secretary of West Bengal appeared in person twice before this Tribunal in O.A. No. 606/2018 dealing with the issue of Solid Waste Management and other environmental issues. The Tribunal directed remedial measures to comply with the law to be monitored at the level of the Chief Secretary by constituting a special cell, directly attached to the office of the Chief Secretary. On directions of the Hon'ble Supreme Court in Paryavaran Suraksha case, supra, the Tribunal has been monitoring the directions to ensure that all pollution 15 control devices to prevent water pollution are in place within the outer limit of 31.03.2018 and for failure to do so, accountability under the Civil and Criminal Law is fixed. The Tribunal has also laid down the scale of compensation @ Rs. 10 lakhs per month for delay in setting of STP and Rs. 5 lakhs per month for delay in providing interim remediation measures in the manner mentioned in the orders quoted above, without prejudice to the statutory liability. There is also direction to record adverse entries in the ACRs of the Officers who are responsible for the delay. Unfortunately, in the present case, the orders delaying the remedial action include higher officers but no adverse entries in the ACRs are made nor prosecution initiated, as per direction of the Hon'ble Supreme Court, by the West Bengal State PCB. This is dangerous trend to violate the law and to disrespect the rule of law which calls for stringent action if rule of law is to prevail. Continuing violations of orders of this Tribunal is further offence under Sections 26 and 28 of the NGT Act.
16. In view of above, the stand of the Authorities of West Bengal in just giving convenient dates for future action without accountability for the offences already committed and which will continue till proposed action is taken is untenable in law and shows lack of sensitivity to public duties and respect for binding law and orders of the Hon'ble Supreme Court and this Tribunal, to the prejudice of right of the citizens to clean environment with potential for deaths and diseases. Water pollution is also resulting in depriving living creatures of source of drinking water. No data has been furnished about water quality of the river at relevant point, output results of functioning STP or arrangement to prevent pollution till proposed action is completed on a future date. No comprehensive plan is shown to ensure that entire sewage is received at 16 the STP with sewage utilization scheme so that no sewage enters into the river. There is nothing to show steps taken to disinfect sewage, with all safety in terms of protecting aquatic life and impairment of water quality entering into the river, for removing faecal coliform. It may be noted that the stretch of river Mahananda is in the list of 351 polluted river stretches as per data compiled by the CPCB. In respect of the said polluted river stretches, this Tribunal in OA 673/2018, News item published in "The Hindu" authored by Shri Jacob Koshy Titled "More river stretches are not critically polluted: CPCB" directed preparation of river rejuvenation plan by the River Rejuvenation Committee constituted under the orders of this Tribunal. Such a plan has been prepared with timelines. The progress thereof has not been indicated.
17. In view of the above, we direct Chief Secretary, West Bengal to forthwith look into the matter personally and take remedial action against erring officers for continuously committing and enabling the violation of law and binding orders of the Hon'ble Supreme Court and this Tribunal. The Chief Secretary may also ensure that a copy of this order is kept in ACR Folders and Personal files of the concerned erring officers. This order is without prejudice to prosecution of the concerned Officers for past and for continuing violation of the statutory provisions and orders of the Hon'ble Supreme Court and this Tribunal.
18. The Chief Secretary, West Bengal may remain present in person by Video Conferencing on the next date along with action taken report. The State of West Bengal may deposit a sum of Rs. 2 crores as interim compensation with the Collector of the District which may be utilized for restoration of water quality of the river.
List for further consideration on 17.01.2022. 17 A copy of this order be forwarded to the Chief Secretary, West Bengal by e-mail for compliance.
Adarsh Kumar Goel, CP Sudhir Agarwal, JM B. Amit Sthalekar, JM Brijesh Sethi, JM Dr. Nagin Nanda, EM Saibal Dasgupta, EM September 20, 2021 Original Application No. 10/2016/EZ A 18