National Green Tribunal
Dakshinbanga Matsyajibi Forum vs Moef on 6 January, 2022
Item No. 03 Court No.1
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Video Conferencing)
Original Application No. 92/2021/EZ
Dakshinbanga Matsyajibi Forum Applicant(s)
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 06.01.2022
CORAM: HON'BLE MR. JUSTICE B. AMIT STHALEKAR, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s) : Mr. Ritwick Dutta, Advocate &
Mr. Rahul Choudhary, Advocte a/w
Mr. Aayush Singhvi, Advocate
For Respondent(s) : Mr. Debasish Ghosh, Advocate for R-1,
Mr. N.C. Bihani, Advocate a/w
Mr. Sibojyoti Chakraborty, Advocate for R-2,4,5&7,
Mr. Dipanjan Ghosh, Advocate for R-3,
Mr. Ashok Prasad, Advocate for R-6,
ORDER
1. Mr. Ritwick Dutta, learned Counsel and Mr. Rahul Choudhary, learned Counsel assisted by Mr. Aayush Singhvi, learned Counsel are present for the Applicant.
2. Mr. Perumal Ulaganathan, District Magistrate, South 24 Parganas, is present before us through Virtual Court Proceedings.
3. One affidavit dated 31.12.2021 has been filed on behalf of the District Magistrate, South 24 Parganas; the same is taken on record.
4. One affidavit dated 05.01.2022 has also been filed on behalf of the District Magistrate, South 24 Parganas; the same is taken on record.
5. Mr. N. C. Bihani, learned Counsel assisted by Mr. Sibojyoti Chakraborty, learned Counsel representing the District Magistrate, South 24 Parganas, has drawn our attention to paragraphs 6, 7, 8 1 & 9 of the affidavit dated 31.12.2021 and submits that remedial action has been directed to be taken to ensure stoppage of all construction works in the Amlamethi Hill Resort and also to ensure that the amount of fine as assessed by the Competent Authority is deposited by the Bali-I, Gram Panchayat, Gosaba, for violation of the CRZ Notification and damaging the environment. Paragraphs 6, 7, 8, 9 & 10 of the affidavit are reproduced herein under:- "6. That the steps in compliance of the solemn order of the Hon'ble Tribunal has been initiated on 24.12.2021 vide Memo No. Misc/5046/1/2021 itself by passing necessary direction to the Sub-Divisional Officer, Canning, Stating that:
(A) All the ongoing construction including schemes under MGNREGA taken up by Bali-I Gram Panchayat in area under Amlamethi Hill Resort area is immediately stopped. This shall be enforced by the local police station as per direction issued by the Hon'ble NGT vide reference ordre.
(B) The entire area under Amlamethi Hill Resort, falling under CRZ-I zone must be restored into its original condition by removing all constructions including concrete, brick, iron, wooden and other building materials within 15 days.
(C) Plantation of mangroves to be done in the landward area upto 100 meters from shoreline covering the entire length of project area where mangrove had been affected dueto construction.
Schemes for such fresh plantation need to be prepared and submitted by BDO, Gosaba immediately for necessary approval. (D) A fine of such amount as assessed by the competent authority to be deposited by Bali-I Gram Panchayat, Gosaba for violation of CRZ Notification and damaging the environment.
It is most humbly submitted that the Hon'ble Tribunal may, if it so considers, form a committee comprising of senior officials from the concerned Departments to assess the environmental damage in violation of the CRZ Notification at the alleged construction site of Amlamethi Hill Resort.
7. That the solemn order of the Hon'ble Tribunal has been duly communicated to the Superintendent of Police, Baruipur Police 2 Station, South 24 Parganas vide Memo No. Mis.5054/1/2021 dated 24/12/2021, to ensure that all construction works in Amlamethi Hill Resort is stopped immediately and the said order of the Hon'ble NGT is enforced.
8. That the Sub-Divisional Officer, Canning Sub-division, vide Memo No. 1862/1(4)/SDO/CNG dated 27.12.2021 sent a letter to the Pradhan Bali-I Gram Panchayat, Gosaba Development Block regarding action against violation of CRZ Notifications by Amlamethi Hill Resort with a direction to ensure following immediately:
i. All the ongoing construction including schemes under MGNREGA taken up by Bali-I Gram Panchayat in area under Amlamethi Hill Resort area is immediately stopped.
ii. The entire area under Amlamethi Hill Resort, falling under CRZ zone must be restored into its original condition by dismantling and removing all constructions including concrete, brick, iron, wooden and other building materials within 15 days. The entire cost for the aforementioned works will be borne by the own funds of the Panchayat.
iii. Plantation of mangroves to be done in the landward area up to 100 meters from shoreline covering the entire length of project area where mangrove had been affected due to construction.
Schemes for such fresh plantation need to be prepared and submitted by BDO, Gosaba immediately for necessary approval.
9. That the action as per direction of the Hon'ble Tribunal has already initiated at ground level by the district administration and the construction made in violation of CRZ Notification 2011 and falling under CRZ-I Zone are being dismantled and removed in compliance of the direction issued by the deponent vide letter dated 24.12.2021.
That the report submitted by the Block Development Officer, Gosaba along with Photographs of the ongoing dismantling of constructions taken on 27.12.2021 vide Memo No. 3221 dated 27.12.2021, which states that the construction works in Amlamethi Hill Resorts falling under CRZ-I Zone in Bali-I Gram Panchayat has been stopped and dismantling of construction works has also started as reported by the said Gram Panchayat.
10. That the Superintendent of Police, Baruipur Police District has submitted a report vide Memo No. 1916/Legal Cell dated 31.12.2021, which states that the order of the Hon'ble National 3 Green Tribunal as communicated was sent to O/c Gosaba P.S. vide Memo No. 1902/Legal Cell dated 28.12.2021 for strict compliance. O/c Gosaba also directed to keep sharp vigil over the matter. Accordingly, O/c Gosaba P.S. enquired into the matter locally and stopped the construction work of Amlamethi Hill Resorts. As per instructions sharp and close vigil over the site is being kept from the end of Gosaba P.S."
6. Mr. Bihani has also drawn our attention to Annexure R-3 (at page no. 93 of the paper book) and submits that the District Magistrate has directed the Superintendent of Police, Baruipur Police Station, District-South 24 Parganas, requesting to ensure that all construction works in the Amlamethi Hill Resort area are stopped immediately and the direction of the National Green Tribunal is enforced by the local police station.
7. However, we find that this letter does not contain any direction to the Superintendent of Police, Baruipur Police Station, to lodge FIR against the Project Proponent who, as per the own report of the District Magistrate, South 24 Parganas, was in violation of environmental laws when the Amlamethi Hill Resort was being constructed.
8. Section 3 of the Prevention of Money-Laundering Act, 2002, reads as under:-
"3. Offence of money-laundering- Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it is untainted property shall be guilty of offence of money-laundering."
9. Section 4 of the Act which prescribes the punishment for money-
laundering, reads as under:-
4
"4. Punishment for money-laundering- Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years" had been substituted."
10. Section 43 of the Prevention of Money-Laundering Act, 2002, reads as under:-
"43. Special Courts.-- (1) The Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of offence punishable under section 4, by notification, designate one or more Courts of Session as Special Court or Special Courts or such area or areas or for such case or class or group of cases as may be specified in the notification.
(2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
11. Section 44 of the Prevention of Money-Laundering Act, 2002, reads as under:-
44. Offences triable by Special Courts.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- 1 [(a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or]; (b) a Special Court may, 2 *** upon a complaint made by an authority authorised in this behalf under this Act take 3 [cognizance of offence under section 3, without the accused being committed to it for trial]; 4 [Provided that after conclusion of investigation, if no offence of money-laundering is made out requiring filing of such 5 complaint, the said authority shall submit a closure report before the Special Court; or] 5 [(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed. (d) a Special Court while trying the scheduled offence or the offence of money-
laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 ( 2 of 1974) as it applies to a trial before a Court of Session.]"
(2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a reference to a "Special Court" designated under section 43.
12. Paragraphs 25, 26 & 27 of the Schedule of the Prevention of Money-
Laundering Act, 2002, read as under:-
PARAGRAPH 25 OFFENCES UNDER THE ENVIRONMENT PROTECTION ACT, 1986 (29 OF 1986) Section Description of offence 15 read with section 7 Penalty for discharging environmental pollutants, etc., in excess of prescribed standards.
15 read with section 8 Penalty for handling hazardous substances without complying with procedural safeguards.
PARAGRAPH 26 OFFENCES UNDER THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974 (6 OF 1974) Section Description of offence 41 (2) Penalty for pollution of stream or well. 43 Penalty for contravention of provisions of section 24. 6
PARAGRAPH 27 OFFENCES UNDER THE AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981 (14 OF 1981) Section Description of offence 37 Failure to comply with the provisions for operating industrial plant.
13. A conjoint reading of Sections 3, 4 and Sections 43 and 44 of the Prevention of Money-Laundering Act, 2002 and paragraphs 25, 26 and 27 of the Schedule thereto would show that if air, water, ground and environment pollution is caused in an area, not only the person causing environmental pollution but any person indirectly or knowingly aiding or assisting such act would also be liable for causing illegal financial gain to such violator.
14. In the affidavit of 05.01.2022, all that has been stated is that a sum of Rs. 17, 33, 417 (Rupees Seventeen Lakh Thirty Three Thousand Four Hundred Seventeen) has been sanctioned for plantation of mangrove at the Amlamethi Hill Resort falling under the CRZ-I. This affidavit does not disclose whether the amount of penalty has been determined and recovered from the Project Proponent or not.
15. Mr. Bihani further submits that so far as the determination of environmental compensation, cost of restitution and remedial measures and penalty is concerned, the same needs to be determined by a duly constituted committee after first assessing the damage to the environment.
16. We, therefore, constitute a Committee comprising of the following Members:-
i) Senior Scientist from Central Pollution Control Board;
ii) Professor C. R. Babu or any other Scientist suggested by him from Centre for Environmental Management of Degraded Ecosystems (CEMDE), New Delhi, 7
iii) Senior Scientist from West Bengal Pollution Control Board;
iv) Dr. Tapas Kumar Gupta, Chief Technical Advisor, West Bengal Pollution Control Board;
v) Principal Chief Conservator of Forests (Wildlife) or his representative not below the rank of Chief Conservator of Forests, Govt. of West Bengal;
vi) Senior Official from State Coastal Regulation Zone, Govt. Of West Bengal;
17. The West Bengal Pollution Control Board shall be the Nodal Agency for all logistic purposes.
18. The Committee shall inspect the site within three weeks and assess the damage caused to the environment. The Committee will compute environmental compensation, cost of restitution/remedial measures and penalty to be recovered from the project proponent/proponents and also suggest remedial measures to restore the area to its original shape. The Committee shall submit its report within three weeks thereafter.
19. Mr. Ritwick Dutta, learned Counsel for the Applicant submits that if this entire enterprise of setting up of Resort is by a private project proponent, how could the funds of MGNREGA, which are State funds, be utilized for causing financial aggrandizement to a Private Resort Developer/Proponent/Proponents.
20. Learned Counsel has also specifically referred to the document filed as Annexure R-1 (at page nos. 45 to 53 of the paper book) which shows that a sum of Rs. 654.099 lakhs has been spent on private resort developers so far.
21. In our previous order dated 23.12.2021 we had directed the Chief Secretary, Govt. of West Bengal to look into the matter and ensure 8 compliance of the CRZ-I regulations. Till date, no affidavit has been filed by the Chief Secretary, Govt. of West Bengal.
22. We, therefore, direct the Chief Secretary, Govt. of West Bengal to enquire into this matter regarding financial gain caused to private developer/s also, in addition to violation of CRZ-I and file his affidavit before the next date of listing.
23. The Applicant is granted two weeks time for filing his rejoinder response to the affidavits dated 31.12.2021 and 05.01.2022 filed by the District Magistrate, South 24 Parganas, after serving e-copy/soft copy of the same upon the learned Counsel for the other Respondents.
24. Mr. Perumal Ulaganathan, District Magistrate, South 24 Parganas, shall also be present in Court through Virtual Court Proceedings on the next date of listing.
25. List on 23.02.2022.
..................................... B. Amit Sthalekar, JM ...................................
Saibal Dasgupta, EM January 06, 2022 Original Application No. 92/2021/EZ AK 9