National Green Tribunal
1. Ramakant Rout S/O Late Touli Charan ... vs 1. State Of Odisha Through The Secretary ... on 20 May, 2025
Item No.4 Court No. 2
BEFORE THE NATIONAL GREEN TRIBUNAL
EASTERN ZONE BENCH, KOLKATA
(Through Physical Hearing with Hybrid Mode)
M.A No. 01/2025/EZ
In
Original Application No. 116/2022/EZ
Ramakanta Rout & Ors. Applicant
Versus
State of Odisha & Ors. Respondent(s)
Date of hearing: 20.05.2025
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
Applicant(s): Mr. Sankar Prasad Pani, Advocate a/w Mr. Ashutosh
Padhy, Advocate for the Applicant (in Virtual Mode)
Respondent(s): Mr. Varun Mishra, Advocate for R-1, 2 and 7 (in Virtual
Mode)
Mr. Jugal Kishore Panda, Advocate for R-3 (in Virtual
Mode)
Mr. Dipanjan Ghosh, Advocate for R-4 (in Virtual Mode)
ORDER
1. Heard Learned Counsels.
2. Mr. Sankar Prasad Pani has appeared for applicant; Mr. Varun Mishra for respondents 1, 2 and 7; Mr. Jugal Kishore Panda for respondent 3; and Mr. Dipanjan Ghosh for respondent 4.
3. Original Application (hereinafter referred to as 'OA') was filed by applicants namely Ramakant Rout, Susanta Kumar Parida, Shiba Prasad Kumura, Rintu Mahapatra, Prem Raj Sahu, Mariyam Barla and Siba Shosh, all residents of ward no. 15, Bargarh alleging that in Bargarh Municipality, Plot No. 8355 and Plot No.8357, Khata No.26, Plot No.8360, area 1.56 decimal in ward no. 15 are being used as dumping ground causing air, water and soil pollution in the area though the land is situated 1 close to human habitation. Bargarh Municipality generates around 20 Metric Tonnes of garbage every day while only 15 Metric Tonnes of garbage is being collected. "River Jeera" flowing through the City of Bargarh has become a sewage channel even though the river is catering to drinking water needs of the town of Bargarh. Garbage and untreated municipal waste water is being released into this River.
4. The allegations further are that untreated and mixed municipal garbage including carcass of dead animals is being dumped at the site in question by Bargarh Municipality and there is no segregation of bio- medical waste; dumping of night soil and waste from cesspool vehicle or municipal garbage.
5. Tribunal examined the matter in detail and after exchange of pleadings and consideration of reports submitted by Joint Committee constituted by Tribunal, OA was disposed of finally vide judgment dated 23.03.2023 and following directions were issued:
"26. We, therefore, dispose of this Original Application with the following directions: -
(i) The amount of Rs.1,84,42,800/- (Rupees One crore eighty-four lakh forty-two thousand eight hundred only) shall be deposited by the State Government in an ESCROW account to be utilized for the remediation measures for treatment of the legacy waste as well Bio-mining and all other remedial measures as may be required for Bargarh Municipality.
(ii) The Municipality has itself proposed setting up of five Sewage Treatment Plants (STPs) of 125 KLD at five different locations inside the municipality, we, therefore, direct the said STPs to be installed and made operational by 31.12.2023.
(iii) So far as treatment of legacy waste is concerned, we direct the Bargarh Municipality to ensure complete treatment of legacy waste through Bio-mining/Micro Composting Centers/Material Recovery Facilities by 31.12.2023.
(iv) The Inspection Report shows that waste is being transported at present to a common waste disposal facility located at Amasranga, Sundargarh. We direct that the said dumpsite shall comply with the 2 directions required in the siting criteria for such dumpsite as per Schedule I of the Solid Waste Management Rules, 2016. The dumpsite shall be provided with a surrounding boundary wall as per rules."
6. Applicants filed Miscellaneous Application No.1/2025 complaining that various directions given by Tribunal have not been complied with at all and no effective step has been taken by the authorities concerned towards compliance thereof.
7. Tribunal took cognizance of the M.A. on 12.02.2025 and noticing the grievance raised in M.A., found it appropriate to issue notices to respondents returnable within four weeks. Respondents were directed to file their counter affidavit within four weeks.
8. Odisha State Pollution Control Board (hereinafter referred to as 'OSPCB') has filed certain documents dated 12.02.2025 itself placing on record the recommendations made by Regional Officer, Sambalpur, Odisha vide letter dated 08.01.2025 to Member Secretary, OSPCB in the light of inspections made with regard to compliance on the part of Municipality Bargarh. Inspection was conducted on 02.01.2025. Regional Officer found substantial non-compliance with regard to directions of Tribunal. Relevant extract of recommendations made by Regional Officer for taking appropriate action against the violators reads as under:
"With reference to the subject cited above this is to intimate that the above Municipality was inspected on dt. 02.01.2025 in connection with the management of sewage effluent and disposal of solid waste and Physical surveys of solid waste generated by the Municipality. However, the following non-compliances were observed by the Board Officials of this office during the day of inspection.
• The amount of Rs 1,84,42,800/- (Rupees One Crore Eighty-Four Lakhs Forth Two Thousand Eight Hundred Only) has not been deposited by the Municipality Authority towards the fine imposed by the Hon'ble NGT, EZ Bench, Kolkata. • The Municipal authority has not completed bio-mining activity at the solid waste dumpsite at Ward No. 15.3
• The Municipality Authority has not taken any steps towards setting up five Sewage Treatment Plants (STPs) of 125 KLD at five different locations inside the municipality and directed the STPs to be installed and made operational by dt.31.12.2023. • The Municipality Authority has not yet applied for renewal of CTO for the Septage Treatment Plant (SeTP) of 30 KLD capacity at Tentela, Dist: Bargarh.
• The Municipal authority has not completed the treatment of legacy waste as the Hon'ble Court directs to ensure complete treatment of legacy waste by dt.31.12.2023. • The surface water sample was collected from upstream (near Bargarh Law College) and downstream (near PHED pada at the old water intake point) of Bargarh town from Jeera River. The analysis report is enclosed for reference with regard to pH, TSS, DO, BOD, and COD. Analysis report obtained for surface water reveals that the DO and BOD do not conform to the Standards for both Class B and Class C water. For rest parameters such as TC, FC, and other parameters, the water samples have been sent to Central Laboratory, State Pollution Control Board, Odisha, Bhubaneswar.
• The unsegregated municipal solid waste was being dumped haphazardly on the bank of Jeera River during the day of inspection.
• It was also observed that the untreated urban wastewater was being discharged directly into the Jeera River at various points polluting the River Jeera.
• The Municipality authority has not adopted any methodology for the quantification of solid waste generation inside the Municipal area. The wastes are unsegregated and are dumped in the open dispersedly. The polythenes and other plastic wastes are found scattered all around creating a nuisance. Monitoring and supervision of Municipality officials are found lacking as a result management of Solid waste is not satisfactory. • The garbage and waste materials generated from the Municipal area are being disposed by throwing and dumping here and there in an unplanned manner.
• The waste, generation, collection & disposal inside the Municipal area are not maintained by the Municipality. • The solid waste generated inside the Municipal area is found to be un-segregated during the day of inspection. • The Municipal Authority may be directed to provide more numbers of storage bins & types of machinery for collection, transportation & disposal of solid waste inside the Municipal area.
• The Municipality has no records of the actual number of households covered under collection of waste. • The Municipality authority has provided a drainage system in all wards for the collection of wastewater generated from the different areas of the wards.4
Therefore, the Municipality authority may be directed to install sewage Treatment Plant (STP) of adequate capacity for the treatment of wastewater generated from the Municipal area and apply consent to operate to the Board. The Municipality authority should ensure that the treated wastewater meets the prescribed norm of the Board before being discharged to any water body. This is for your information and necessary action."
9. An affidavit dated 08.05.2025 has also been filed by OSPCB stating that inspection of the area of Municipality was conducted on 21.03.2025 with regard to compliance of Tribunal's order dated 23.03.2023 and the observations recorded by Joint Committee of OSPCB are as under:
"In this regard, the alleged Dump site at Ward No. 15 of M/s Bargarh Municipality was inspected on the date. 21.03.2025. Earlier, an inspection was carried out on 02.01.2025 in the matter and the report was submitted vide this office letter no. 81 dtd. 08.01.2025. During the inspection of dtd 21.03.2025, the Executive Officer of M/s Bargarh Municipality, Sri Debananda Sahu was contacted over the phone to know the present status of the matter. Sri Pravat Kumar Barik, Jr. Sanitation Expert was present during the inspection and the following observations were made.
Observations of 21.03.2025 with regards to the direction of NGT case O.A. No. 116/2022/EZ vide order dtd. 23.03.2023:
Para 26- (i) The amount of Rs 1,84,42,800/- (Rupees One Crore Eighty-Four Lakhs Forth Two Thousand Eight Hundred Only) has to be deposited in an escrow account to be utilized for the remediation measures for legacy waste as well as bio-mining and all other remedial measures as may be required for Bargarh Municipality.
Observation- The current status of the amount deposited in the escrow account was unavailable with the Bargarh Municipality during the inspection. However, Sri PK Barik, Jr. Sanitation Expert informed that a certain amount has been sanctioned for bio-mining of legacy waste from the Housing and Urban Development Department, Govt. of Odisha vide their letter no. 24136 dt. 16.11.2024. However, on the day of inspection bio-mining activity was not in operation at the solid waste dumpsite at Ward No. 15.
Para 26- (ii) The Municipality has proposed setting up five Sewage Treatment Plants (STPs) of 125 KLD at five different locations inside the municipality and directing the STPs to be installed and made operational by dt.31.12.2023.5
Observations- No such STPs of the said capacity have been installed by the Bargarh Municipality to date or no document was available with the municipality during inspection regarding STP establishment. However, the Municipality has installed and made operational one Septage Treatment Plant (SeTP) of 30 KLD capacity at Tentela, and has obtained CTO vide letter no. 562 dt.04.03.2022 valid up to dt.31.03.2022. The Municipality has not yet applied for renewal of the same. During the inspection, water sample could not be collected from the SeTP as there was no discharge from the final outlet. The Municipality has provided 02 nos. of cesspool vehicles of 3 KLD capacity each for transportation of septage from households to the SeTP plant.
Para 26- (iii) So far as treatment of legacy waste is concerned, we direct the Bargarh Municipality to ensure complete treatment of legacy waste through Bio-mining/Micro Composting Centers/Material Recovery Facilities by 31.12.2023.
Observation- The Municipal Authority has not yet completed the remediation of the legacy waste at the alleged site. During the inspection, it was observed that approximately 20,000 MT (as enquired with the representative of the unit) only of legacy waste has been bio-mined out of approximately 51,476 MT from the dumping site at Ward no.- 15. It was observed that, one bio-mining machine/ Trommel machine of capacity 500 T per shift has been installed on- site, but it was non-operational during the inspection. As informed by Sri PK Barik, Jr. Sanitation Expert the machine was installed in April 2024 and after bio-mining a certain quantity up to July 2024 it was stopped due to some funding issues. To date, a huge quantity of legacy waste is left to be bio-mined.
The Municipality has installed 03 nos. of wealth centres at various locations of the Municipality, each having 01 no. Micro Composting Centre (MCC) of 5 TPD capacity for wet waste and 01 no. of Material Recovery Facility (MRF) of capacity 10 TPD for dry waste.
Para 26- (iv) The Inspection Report shows that waste is being transported at present to a common waste disposal facility located at Amasranga, Sundargarh. We direct that the said dumpsite shall comply with the directions required in the siting criteria for such dumpsite as per Schedule I of the Solid Waste Management Rules, 2016. The dumpsite shall be provided with a surrounding boundary wall as per the rules.
Observations- All the Govt. and private HCFs have been directed by the Directorate of Public Health, Govt of Odisha vide letter no. 7154 dt.22.12.2022 to utilize the service of available CBMWTF. Hence, all Govt and registered private HCFs of Bargarh district are utilizing the services of the Common Bio Medical Waste Treatment Facility (CBMWTF) at Amasranga, Sundargarh being operated by M/s.6
Mediad Marketing Services. Overall management practice of Bio medical waste generated from the Health Care facilities operating in the Municipality area is observed to be as per the provisions of the rule.
The alleged dumpsite is located at Plot No. 8355 and Plot No. 8357, Khata No. 26, Plot No. 8360, Ac. 1.56 dec. in Ward No. 15 of the Bargarh Municipality. During the visit, it was observed that the dumpsite had been covered with boundary walls of 15 ft in height. However, many residential houses are situated in very close proximity to the boundary wall of the dumpsite violating the siting criteria for such dumpsite as per Schedule I of the Solid Waste Management Rules, 2016.
Para 27- Till complete remediation of the legacy waste at the present dump site of 51,476 MT is achieved the present dumpsite shall be secured by a boundary wall construction which will be completed within two months.
Observations- As observed during the inspection, the dump site is secured by a boundary wall of approximately 15 ft height on all sides. However, a huge amount of solid waste is stored inside the dump site.
Para 28- Legacy waste dumpsites have resulted in huge damage to the environment and population in the vicinity of such dump sites which have suffered in safety, health, and comfort. To compensate them for such damage, one-third of land occupied by legacy dump sites (on reclamation) needs to be reserved for dense forest, and in the process of afforestation, Campa Funds can be utilized under the provisions of Compensatory Afforestation Fund Management and Planning Authority Act, 2016 (CAMPA Act).
Observations- No information was available with the Municipality during the inspection.
Other observations made during verification: -
1. During the inspection, 03 nos. of groundwater samples were collected from around the alleged dump site. Also, 02 nos. of surface water samples were collected from upstream (near Bargarh Law College) and downstream (near PHED pada at old water intake point) of Bargarh town from Jeera River. The analysis report is enclosed for reference with regard to pH, TSS, DO, BOD, and COD. Analysis report obtained for surface water reveals that the downstream of Jeera River, DO and BOD does not conform to the Standards for both Class B and Class C of water. For rest parameters such as TC and FC does not conform the standards at upstream and downstream of Jeera River.
Ground water also collected from nearby area of Solid waste 7 dump site of Ward No. 15 of Bargarh Municipality. The parameter like Chloride, TC of ground water collected from Open dug well of Sri Sabyasachi Tripathy house exceeded the prescribed Standard with reference to drinking water specification IS: 10500 (2012) and its amendments. The parameters like TC and FC exceeded the prescribed Standard with reference to drinking water specification IS: 10500 of Bore wells water collected from Babulal Achary's house. The analysis reports are attached along with this report.
2. It was also enquired regarding the construction of 05 nos.
Sewage Treatment Plant (STPs) at 05 different locations inside the municipality area. However, no such steps have been taken for the construction of STPs by Bargarh Municipality.
3. On the day of the visit, it was also observed that the unsegregated municipal solid waste was being dumped haphazardly on the bank of Jeera River at various locations.
4. It was also observed that the untreated urban wastewater was being discharged directly into the Jeera River at various points."
10. District Collector, Bargarh (respondent 2) has filed its affidavit dated 12.05.2025 and therein with regard to compliance status, the facts disclosed are as under:
"SUBMISSIONS A. RE: Direction at Paragraph 26 of the Order dated 23.03.2023 i. As per the kind direction passed by this Hon'ble Tribunal in paragraph 26(i) of order dated 23.03.2023 in O.A. No. 116/2022/EZ, an amount of Rs.1,84,42,800/- (Rupees One Crore Eighty-Four Lakh Forty-Two Thousand Eight Hundred Only) was to be deposited by the State Government in an ESCROW account, earmarked for undertaking remedial measures for the treatment of legacy waste, including bio-mining and any other necessary remedial activities within the jurisdiction of Bargarh Municipality.
ii. In this context, the Answering Respondent submits that, out of the above said amount, Rs. 1,21,99,000/- (Rupees One Crore Twenty-One Lakh Ninety-Nine Thousand Only) has been received vide Letter Nos. 21824, 21830 & 21836 dated 23.10.2024 and Letter Nos. 27921, 27936 & 27942 dated.24.12.2024 issued by the Housing and Urban Development Department, Bhubaneswar, Odisha. A copy of the letters dated 23.10.2024 and 24.12.2024 are annexed herewith and marked as Annexure-A. 8 iii. It is further submitted that in this connection, the bio-mining process is currently ongoing in the land bearing Plot Nos. 8355 & 8357 of khata no. 26 in Mouza-Bargarh under Bargarh Tehsil with an extent of total area of Ac.1.56 dec.
iv. As per the latest drone survey conducted by the Bargarh Municipality on 21.04.2025, the quantity of legacy waste remaining at the dumpsite has been assessed to be 4,914.88 MT. The detailed Drone Survey Report for Bargarh Dump yard is annexed herewith and marked as Annexure-B. v. The Bargarh Municipality had initially proposed the establishment of five Sewage Treatment Plants ("STPs"), each with a capacity of 125 KLD, at five different locations within the Bargarh Municipal Area.
vi. Accordingly, directions were issued to the Municipality to install these STPs and make them operational by 31.12.2023. However, due to the non-availability of suitable land within the municipal limits, and keeping in view the future expansion needs of the town, a detailed site survey was conducted by the Municipality on the basis of which it has now been proposed that a single waste water treatment plant of a capacity of 12 MLD be constructed on Plot No.878, Ac.2.10 dec, Plot No.880, Ac.0.54 dec., Plot No.881, Ac.5.61 dec. (Total Ac.8.25 dec.) of Khata No.603 of Mouza-Ruhungia in Tora RI Circle under Bargarh Tehsil.
vii. This aforementioned single waster water treatment plant has more capacity than the five previously proposed STPs in terms of waste water treating capacity. In this regard, a proposal has been submitted to the Principal Secretary, Housing and Urban Development Department, Bhubaneswar, Odisha vide letter No.6624/(G&M) dated 03.05.2025, seeking approval and necessary action. A copy of the proposal dated 03.05.2025 submitted to the Principal Secretary, Housing and Urban Development Department, Bhubaneswar, Odisha vide letter No.6624/(G&M) is annexed herewith and marked as Annexure- C. viii. The answering Respondent also submits that the Municipal Council of Bargarh does not directly collect biomedical waste generated by the various hospitals. The healthcare facilities in Bargarh district utilize the services of the Common Bio-Medical Waste Treatment Facility ("CBMWTF") located at Sialbahali, Bolangir, operated by M/s Renewable Envirogic Pvt. Ltd., which was previously dumped at Amasranga, Sundargarh. 9 ix. The overall management of biomedical waste generated within the Bargarh Municipal area has been observed to be compliant with the provisions of the relevant Biomedical Waste Management Rules, 2016.
x. The general (non-biomedical) waste generated from the hospitals within the Bargarh Municipal area is collected and managed by the Municipal Council of Bargarh as a part of its regular solid waste management system. A copy of letter No. 5669/PH- BMWM-01/2023 dated 25.08.2023 issued by the Directorate of Public Health, Department of Health & Family Welfare, Government of Odisha along with the Notification dated 24.08.2023 on rates to be charged from HCFs by all the CBWTDFs is annexed herewith and marked as Annexure-D. B. RE: Direction at Paragraph 27 of the Order dated 23.03.2023 The dumpsite has been secured with a boundary wall of 420 feet long and 12 feet height at Ward No.15, Bargarh Municipality, which helps in preventing contamination and protecting the surrounding area. A copy of the still images showing the boundary wall at Ward No.15, Bargarh Municipality is annexed herewith and marked as Annexure-E. RE: Direction at Paragraph 28 of the Order dated 23.03.2023 i. Finally, the answering Respondent submits that in line with the directive of this Hon'ble Tribunal that one-third of the area on the reclaimed dump site is to be reserved as a dense forest, Bargarh Municipal Council has proposed to take afforestation initiative within the reclaimed dumpsite area as a means of shouldering responsibility.
ii. In view of the above, a request letter has been sent to the Divisional Forest Officer (DFO), Bargarh vide Letter No.2038 dated.03.05.2025 by the Executive Officer, Bargarh Municipality, for seeking approval and support for undertaking Compensatory Afforestation Plantation in one-third of the reclaimed area, specifically over the land bearing Plot No.8355 & 8357 of Khata No.26, Ac.1.56 dec. in Mouza-Bargarh under Bargarh Tahasil by utilizing the CAMPA Funds accordingly. A copy of the request letter dated 03.05.2025 issued by the Office of the Municipal Council of Bargarh is annexed herewith and marked as Annexure-F."
10
11. So far as Bargarh Municipality is concerned, we find that Bargarh Municipality has not filed any separate response but the order dated 14.05.2025 shows that Shri Jugal Kishore Panda, Learned Counsel appearing for respondent 3 stated that Bargarh Municipality is adopting the affidavit of State respondents, hence compliance status as disclosed by respondent 2 has been accepted by respondent 3 also.
12. Having gone through the compliance status disclosed by respondent 2, it is evident that virtually every direction given by Tribunal in its order dated 23.03.2023 remained uncompiled with. More than 2 years have passed but the concerned authorities have not taken care to take directions seriously and also by taking steps towards their compliance but it appears that there is a lackadaisical approach adopted by the said authorities with regard to directions issued by Tribunal. The state of affairs as noticed above is very unsatisfactory, particularly, when it relates to serious contamination and pollution of environment i.e., contamination of land as well as river water. The kind of contamination noticed by Tribunal in respect whereof directions have been issued shows violation of environmental laws namely Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'Water Act, 1974'), Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'Air Act, 1981'), Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act, 1986').
13. We also do not find any effective explanation or reason in the affidavit of respondent 2 as to why for the last more than two years, it was not possible to comply with Tribunal's directions. On this aspect, the reply is virtually silent. The only reason, therefore, evident is, lack of sincerity and seriousness on the part of authorities concerned towards preservation of environment and compliance of directions of Tribunal. 11
14. Section 26 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010') says that non-compliance of direction of Tribunal is an offence for which punishment is prescribed which includes imprisonment for a term which may extend to three years, or with fine which may extend to ten Crore Rupees, or with both. Section 26 reads as under:
"26. (1) Whoever, fails to comply with any order or award or decision of the Tribunal under this Act, he shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to ten crore rupees, or with both and in case the failure or contravention continues, with additional fine which may extend to twenty-five thousand rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention:
Provided that in case a company fails to comply with any order or award or a decision of the Tribunal under this Act, such company shall be punishable with fine which may extend to twenty-five crore rupees, and in case the failure or contravention continues, with additional fine which may extend to one lakh rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence under this Act shall be deemed to be non-cognizable within the meaning of the said Code."
15. Where the offence is committed by companies, the incharge of company who is responsible for the conduct of the business as well the company both are deemed to be guilty of offence vide Section 27 of NGT Act, 2010 and where the offence is committed by State Government, Section 28 says that it is the Head of Department who shall be deemed to be guilty of such failure. Where a local body has committed such an offence, Supreme Court has taken a view that such matter will be covered by Section 27 which is applicable to the offences by company. 12
16. In Noorulla Khan (supra), Supreme Court while referring to Karnataka State Pollution Control Board vs. B. Heera Naik (supra) said that in the context of Section 48 of Water Act, 1974, Commissioner of Municipal Corporation or Chief Officers of Municipal Councils may not strictly be called heads of the departments but such officials would still come under the provisions of Section 47 of Water Act, 1974. The law laid down in Karnataka State Pollution Control Board vs. B. Heera Naik (supra) was summarized in para 11 of judgment in Noorulla Khan (supra) as under:
"11. What emerges from these decisions of this Court is:
a. If the violation of the provisions of the Water Act was at the hands of a Department, subject to the satisfaction of the requirements under Section 48 of the Water Act, "the Head of the Department"
would be deemed to be guilty. This would of course be subject to the defences which are available to him to establish whether the offence in question was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
b. By virtue of the decision of this Court in V.C. Chinnappa Goudar (Supra), because of deeming fiction under Section 48 of the Water Act, the protection under Section 197 of the Code would not be available and the matter ought to be considered de hors such protection.
c. If the concerned public servant happens to be a Chief Officer or Commissioner of a Municipal Council or Town Panchayat, he cannot strictly be called "the Head of the Department of the Government". Therefore, in terms of decision of this Court in B. Heera Naik (Supra), the matter would not come under Section 48 of the Water Act. But the matter would come directly under Section 47 of the Water Act. According to said decision, even in such cases, the deeming fiction available under Section 47 of the Water Act would dis-entitle the public servant from the protection under Section 197 of the Code.
d. If the offenders are other than public servants or where the principal offenders are corporate entities in private sectors, the question of protection under Section 197 would not arise."
17. 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 13 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.
18. The provisions of NGT Act, 2010 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 27 and 28 of NGT Act, 2010.
19. Considering Section 26 with Section 28 of NGT Act, 2010 in respect of Government Departments, Supreme Court in its order dated 11.09.2024 passed in Civil Appeal No.229 of 2024, Katiya Haidarali Ahmadbhai & Ors. vs. Sanjeev Kumar IAS & Ors., observed as under:
"4. Therefore, there is a provision to punish a person who fails to comply with any order of the NGT. If a Government Department fails to comply with the order of the NGT, by a legal fiction under sub- section (1) of Section 28, the Head of the Department shall be deemed to be guilty of such failure and shall be liable to be proceeded against..."
20. Thus, so far as the departments of State Government are concerned, it is clear from Section 28 of NGT Act, 2010 that it is the head of the Department who shall be deemed to be guilty of such offence.
21. In the present case, direction (i) in para 26 directly says that State Government shall open an ESCROW account and when this direction has not been complied with, it is the head of the department of the State who is responsible.
22. In the circumstances, we find sufficient justification in this particular matter where action should be taken for prosecution of the 14 authorities who have not complied with Tribunal's order by initiation of prosecution under Section 26 read with Section 30 of NGT Act, 2010.
23. However, before proceeding further in the matter, we find it appropriate to give a last opportunity to the concerned authorities hence we give opportunity to respondents 1, 2, 3 and 7 to show cause as to why appropriate directions be not issued for initiation of prosecution of the said authorities for committing offence by non-complying and disobeying the directions of Tribunal and thereby, attracting the provisions of Section 26 of NGT Act, 2010. Response by the said authorities shall be submitted within one month.
24. Further, we direct Member Secretary, OSPCB to show cause as to why it has not taken appropriate action by initiating penal provisions under Water Act, 1974; Air Act, 1981; and EP Act, 1986 as also imposition of environmental compensation against the violators when so many violations have been found, as are noticed in the report submitted by OSPCB, which we have noted above. The said response shall be submitted by Member Secretary, OSPCB within one month.
25. List on 28.07.2025.
Sudhir Agarwal, JM Dr. Arun Kumar Verma, EM May 20, 2025 M.A No. 01/2025/EZ In Original Application No. 116/2022/EZ R 15