National Green Tribunal
Ved Prakash Aggarwal vs Municipal Commissioner Nagar Nigam ... on 25 January, 2022
Item No. 01 (Court No. 1)
BEFORE THE NATIONAL GREEN TRIBUNAL
SPECIAL BENCH
(By Video Conferencing)
Execution Application No. 24/2021
In
Original Application No. 989/2019
Ved Prakash Aggrawal Applicant
Versus
Municipal Commissioner, Nagar Nigam Ghaziabad Respondent
Date of hearing: 25.01.2022
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Applicant: Mr. Ved Prakash Aggarwal, Applicant in Person
Respondent: Mr. Vibhav Mishra, Advocate with Mr. Mithlesh Kumar, City Health Officer,
Municipal Corporation Ghaziabad
Mr. Pradeep Misra & Mr. Daleep Dhyani, Advocates for UPPCB
ORDER
1. This application seeks execution of order dated 08.10.2020 in OA 989/2019, Ved Prakash Aggrawal v. Municipal Commissioner, Nagar Nigam Ghaziabad. By the said order, Tribunal dealt with the issue of illegal operation of dairy farms in residential colony of Chiranjiv Vihar, Ghaziabad. After considering stand of UPPCB and Municipal Corporation Ghaziabad, Tribunal directed as follows:
"1 & 2. xxx ...............................xxx................................xxx
3. Accordingly, the State PCB has filed its report dated 06.10.2020 to the effect that inspection was carried out and action was initiated in view of the non-compliance observed under the relevant provisions of the Water (Prevention and Control of Pollution) Act, 1974.
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4. Let further action be taken by the UPPCB. We have passed a separate order today in Original Application No. 46/2018, Nuggehalli Jayasimha v. Government of NCT of Delhi for finalizing of Guidelines by the CPCB on the subject. The State PCB may follow the said guidelines."
2. Applicant thereafter filed Execution Application No. 04/2021, Ved Prakash Aggrawal v. Municipal Commissioner, Nagar Nigam Ghaziabad without giving particulars of the alleged violators and without impleading them as party. Tribunal disposed of the said application on 09.03.2021 as follows:
"1. xxx ...............................xxx...................................xxx
2. In the present application, it is stated that the applicant sought information about compliance of said above order under the RTI Act but has not been able to get any such information. Thus, in absence of specific information and material showing non-compliance and the alleged violator being made party, it is not possible to pass any further order.
The application is accordingly disposed of without prejudice to the remedies being taken based on specific allegations and material.
3. Though present application is in a way repeat of EA No. 04/2021, the applicant in person states that as per letter dated 21.12.2020 of State PCB, annexed to the application, environmental compensation was imposed against 14 illegal dairies and their particulars are available with the head office of PCB but no effective action has been taken.
4. Tribunal vide order dated 08.09.2021 directed State PCB and Municipal Corporation Ghaziabad to take further action in exercise of their statutory powers against the violators following due process of law and submit action taken report within two months.
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5. Pursuant to above order, Municipal Corporation, Ghaziabad has filed its action taken report dated 08.12.2021 and stand taken by Municipal Corporation in paragraph 3 and onwards is reproduced as under:-
"3. The Zonal Sanitary Officer (Kavi Nagar Zone) along-with the Zonal Food Inspector (Kavi Nagar Zone) of the Municipal Corporation of Ghaziabad went for the inspection of the sites as narrated by the Applicant on 30.11.2021 and have found that the order of this Hon'ble Tribunal is being violated. The true translated copy of the inspection report is annexed herewith and marked as ANNEXURE R-
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4. Therefore, without making any delay, in exercise of the statutory powers vested in the Municipal Corporation of Ghaziabad, the Safai Naik of Kavi Nagar Zone sent a letter to the SHO PS Kavi Nagar, Ghaziabad for lodging the FIR against the defaulters of the order of this Hon'ble Tribunal. The true translated copy of the complaint dated 30.11.2021 sent by the Safai Naik of Kavi Nagar Zone to the SHO PS Kavi Nagar, Ghaziabad is annexed herewith and marked as ANNEXURE R-2
5. When the FIR was not lodged against the defaulters, the Zonal Sanitary Officer (Kavi Nagar Zone) along-with the Zonal Food Inspector (Kavi Nagar Zone) of the Municipal Corporation of Ghaziabad again sent a Letter No.3363/ Health/21 dated 04.12.2021 to the SHO PS Kavi Nagar, Ghaziabad for lodging the FIR against the defaulters under the NGT Act, 2010, u/s 31-A of The Air (Prevention and Control of Pollution) Act, 1981, under relevant provisions of the Urban Solid Waste Management Rules, 2016 & u/s 133 CrPc. The true translated copy of the complaint dated 04.12.2021 sent by the Zonal Sanitary Officer (Kavi Nagar Zone) along-with the Zonal Food Inspector (Kavi Nagar Zone) of the Municipal Corporation of Ghaziabad to the SHO PS Kavi Nagar, Ghaziabad is annexed herewith and marked as ANNEXURE R-3.
6. Therefore, to ensure the compliance of the order of this Hon'ble Tribunal, the Officers of the Ghaziabad Municipal Corporation sent 2 letters to the SHO PS Kavi Nagar to get the FIR lodged against the defaulters.
7. It is worth mentioning that the Respondents have also, on previous occasions, have sent complaint to the SHO PS Kavi Nagar on date 03.12.2019 and 04.02,.2020 against the defaulters.
8. That vide GO No. CS/89(1)9-A-3-2003-62 WRIT/2003 dated 05.09.2003, it has been ordered that the jurisdiction to curb and curtail the commercial activities in the residential area rests with the Development Authority and Awas Vikas Parishad. Therefore, with no statutory power, the present respondents have the limited power to make complaints to the Police Authorities only, whereas the authorities as above have statutory authority to ensure the effective compliance." 3
6. No action taken report has been filed by State PCB. From the above report submitted by Municipal Corporation Ghaziabad, we find that as a matter of fact no effective action, whatever, has been taken except writing two letters to Police Authorities requesting them to register First Information Report (FIR) in respect of offences under Section 31A of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as the Air Act, 1981) and Section 133 Cr.P.C. We pointed out to learned counsel appearing for Municipal Corporation Ghaziabad that the offence under Section 31A of the Air Act, 1981 is non-cognizable and therefore Police is not supposed to register FIR under 156 Cr.P.C. but a criminal complaint ought to have been filed before Magistrate which has not been done by Municipal Corporation though they had advantage of best possible legal advice from their Law Officer as also through their Advocates.
7. Learned counsel appearing for Municipal Corporation Ghaziabad could not give any satisfactory reply.
8. Shri Mithlesh Kumar -City Health Officer has also appeared in virtual mode and stated that he alongwith other officers of Municipal Corporation Ghaziabad, Police Department and State PCB visited the site where dairies were illegally operating, and they took all possible action but when enquired, whether working of dairies was stopped or the same were sealed, he could give no positive reply and seeks 48 hours' time to take effective action.
9. Learned counsel appearing for Municipal Corporation further stated that action for demolition could not be taken by Municipal Corporation since it is within the jurisdiction of Ghaziabad Development Authority and in this regard he placed reliance on a Government order dated 05.09.2003 wherein it is stated that if any commercial activities are going in residential 4 area, jurisdiction to take appropriate action would lie with Development Authorities and said that Municipal Corporation Ghaziabad has written letter to Development Authority but it has not taken any action with regard to demolition of illegally running dairies. However when we pointed out that for prevention of pollution Municipal Corporation possess enough power under statute and such powers are not restricted by above Government Order, he could not give any reply but Sri Kumar, City Health Officer seeks just two days' time for execution of Tribunal's order and to prevent pollution being caused by above mentioned dairies.
10. On behalf of State PCB, Shri Pradeep Mishra learned Advocate stated that pursuant to order of Tribunal, show cause notices were issued to all the violators who were/are illegally running dairies and causing pollution but thereafter no final order has been passed till date. Besides, he could not dispute that State PCB officials also have not taken any action for closure of illegally running dairies or to stop pollution and also could not give any reply as to why no action taken report has been filed by State PCB and says that it is for Tribunal to pass appropriate order.
11. It is really a matter of serious concern where Statutory Regulators as well as State officials who are responsible and accountable for protection and management of environment, not only have failed in discharge of their statutory duties but also have not taken any effective action despite orders passed by this Tribunal repeatedly. We also could not understand, why State PCB officials who have enough powers under various Statutes relating to environment to take appropriate action in the matter have not exercised such statutory powers and have shown complete laxity and apathy. This is serious and need be dealt with sternly. However, before passing any final order in the matter we find it appropriate to give an 5 opportunity to the concerned officers/authorities to explain their conduct and also to grant short time as requested by City Health Officer who has appeared before us to ensure compliance of Tribunal's order.
12. Let this matter may again come up on 01.02.2022 on which date a fresh action taken report shall be filed by Municipal Corporation Ghaziabad. State PCB would show as to what effective action has been taken for execution and compliance of Tribunal's order and why it did not file any action taken report as directed earlier. Further District Magistrate, Ghaziabad, SSP, Ghaziabad, Vice Chairman, Ghaziabad Development Authority, Municipal Commissioner, Ghaziabad Municipal Corporation and Member Secretary, UPPCB shall remain present, virtually, on the next date to explain as to why no coordinated or individual action has been taken against polluters and steps for prevention of crime affecting public health by polluting environment were not taken.
A copy of this order be forwarded to District Magistrate, Ghaziabad, SSP, Ghaziabad, Vice Chairman, Ghaziabad Development Authority, Municipal Commissioner, Ghaziabad Municipal Corporation and Member Secretary, UPPCB by e-mail.
Sudhir Agarwal, JM Dr. Nagin Nanda, EM Dr. Afroz Ahmad, EM January 25, 2022 E.A. No. 24/2021 in O.A. No. 989/2019 A 6