National Green Tribunal
Vanashakti vs State Of Maharashtra on 3 May, 2024
Item No.1 (Pune Bench)
BEFORE THE NATIONAL GREEN TRIBUNAL
WESTERN ZONE BENCH, PUNE
THROUGH PHYSICAL HEARING (WITH HYBRID OPTION)
Misc. Application No.05/2024(WZ)
In
Execution Application No.12/2022
In
Original Application No.80/2020(WZ)
Vanshakti & Anr.
.....Applicant(s)
Versus
State of Maharashtra & Ors.
....Respondent(s)
Date of hearing: 03.05.2024
CORAM: HON'BLE MR. JUSTICE DINESH KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. VIJAY KULKARNI, EXPERT MEMBER
Applicant : Mr. Zaman Ali, Advocate
ORDER
1. The present misc. application has been filed with the following prayers:-
"
(i). That this Hon'ble Tribunal be pleased to direct the Respondent Authorities i.e., Respondent Nos. 6 & 9 to forthwith comply with the directions in the order dated 27.02.2023 in EA No. 12 of 2022 (WZ) in O.A 80 of 2020 (WZ) and immediately ensure closure and removal of the cage culture activity in Vadivale Lake at Village Valavanti, situated in Pune District, Maharashtra and ensure that there is no reoccurrence of such cage culture practices at Vadivale lake, which is a direct source of drinking water;
(ii). That this Hon'ble Tribunal be pleased to initiate strict action against the concerned Officers of Respondent No. 6 u/s 26 of the NGT Act, 2010 for having failed to comply with the directions of this Hon'ble Tribunal in the order dated 27.02.2023 in EA No. 12 of 2022 (WZ) in O.A 80 of 2020 (WZ) with respect to closure of the polluting unit at Vadivale Lake under the Water Act, 1974 and with respect to bringing the aquaculture activity within the EIA regime;
(iii). That this Hon'ble Tribunal be pleased to restrain the Respondent Authorities from permitting the carrying out of any fish Page 1 of 6 farming/aquaculture in the fresh water lake of Vadavali Lake in Village Valavanti on the Kamshet Kundali Road in Maval Taluka, near Village Kamshet, in Pune District;
(iv). That this Hon'ble Tribunal be pleased to pass an order directing Respondent Authorities to carry out the appropriate study at Para 17(ii) of the order dated 27.02.2023 in EA No. 12 of 2022 (WZ) in O.A 80 of 2020 (WZ);....... etc."
2. The learned counsel for applicants has argued that this Tribunal vide order dated 31.05.2022 in Original Application No.80/2020(WZ) had passed following direction:-
"4. We have given due consideration to the issue raise. We are of the view that there is need to ensure protection of environment in the process of aquaculture activities in water bodies(other than those covered by the Coastal Aquaculture Authority Act, 2005) by use of modern techniques, particularly the use of chemicals, if any, in the process. To ensure such protection, there is need to undertake study of the existing consent regime under the Water Act and whether there is need to introduce any changes. We constitute a six member expert committee comprising the concerned Regional Officer, MoEF&CC, the concerned Regional officer, CPCB, the Maharashtra State PCB, the nominee of Ministry of Fishing, Government of India and Maharashtra State and the Central Inland Fisheries Research Institute. The CPCB and the State PCB will be the nodal agency for coordination and compliance. The joint Committee will be at liberty to consult any other Expert Institution or individual and also take into account the studies already undertaken. We understand that based on studies, some States have enacted legislation on the subject such as Kerala Inland Fisheries and Aqua Culture Act, 2010. The Committee may look into the consent regime under the Water Act. The Committee may examine whether in inland fisheries, chemicals are allowed to be used and if so, how the same can be regulated. The study may be completed as far as possible within three months and report furnished to the Secretary, MoEF&CC and the Chief Secretary, Maharashtra for further remedial measures. In the light of such study, the permission granted in the present case may be appropriately revisited, if necessary, following due process."
3. Thereafter, from the side of applicants, an Execution Application No.12/2022(WZ) had been filed, which was disposed of vide order dated 27.02.2023 with the following directions:-
"
(i). MoEF&CC shall consider bringing the cage aquaculture under the Environment Impact Assessment Regime, particularly, in view of the fact that huge pollution is found to have been caused due to this activity in the Vadivale lake.
Page 2 of 6(ii). As regards the cage aquaculture activity to be brought under consent regime, the necessary steps shall be taken by the Central Pollution Control Board (CPCB) as well as Maharashtra Pollution Control Board within three months and for that, if any study is required as suggested by the Committee, the same may be got conducted in the meantime.
(iii). The interim measures which are proposed under clause 11 pertaining to recommendations under sub-clause (iii) (a to f) be implemented by the authorities concerned on urgent basis.
(iv). One Mr. Bhardwaj Yadavrao Pagare was found to have conducted the cage aquaculture activity in the Vadiwale lake with 24 cages and huge pollution load is found because of that activity, therefore, we direct the MPCB to take appropriate action against him after adopting due process i.e. after giving him opportunity of hearing and take appropriate action under Water (Prevention and Control of Pollution) Act, 1974 within one month.
(v). The compliance report shall be submitted before us at the end of six months from today and if any grievance remains thereafter to the applicant, he may approach us."
4. Today, learned counsel for applicants submits that in compliance with the above-mentioned directions of this Tribunal passed in Execution Application No.12/2022(WZ), no action has been taken by the respondent authorities till date. Therefore, the present misc. application has been filed.
5. Apart from the above, he has also prayed before us that an action be taken against the concerned Officer of respondent No.6- MPCB under Section 26 of the National Green Tribunal Act, 2010 for having failed to comply with the said directions issued by this Tribunal. In this regard, he has placed reliance upon the Judgment dated 02.05.2019 passed by the Hon'ble High Court of Bombay in Criminal Writ Petition No.3628 of 2018 (K.V. Kurundkar & Anr. vs. State of Maharashtra & Anr.) along-with other Criminal Writ Petitions, wherein our attention is drawn to the following paras:-
"52. The complainant on the point of competency of the Court of Magistrate and disability of the National Green Tribunal to impose penal action, relied on the judgment of Madhya Pradesh Pollution Control Board (supra). In the said case, complaints were instituted in Chief Judicial Magistrate Court at Bhopal under sections 15 and 16 of Environment Protection Act and also under sections 44, 47 and 88 Page 3 of 6 of the Water (Prevention and Control of Pollution) Act, 1974. The Magistrate issued summons under the relevant sections of the Environment Protection Act to the accused. Subsequently, the case was transferred to the National Green Tribunal. The National Green Tribunal held that as per the jurisdiction of the National Green Tribunal Act it is limited by the words "all civil cases". However, it is mentioned that Section 15 of National Green Tribunal Act gives wide jurisdiction of the Tribunal to pass an order, give relief and compensation to the victim of pollution so also other environmental damages. However, the Tribunal has no jurisdiction to deal with the criminal cases. It has no jurisdiction to try, adjudicate and punish the accused person even though they are found guilty under sections 15 and 16 of the Environmental Act in view of section 14 of National Green Tribunal Act. In the said case, the National Green Tribunal was dealing with the penal provisions of the Environmental Protection Act and Water (Prevention and Control Pollution) Act of which the Magistrate has already taken cognizance. The view taken by the National Green Tribunal has correctly held that only the Court can take cognizance and punish. However, the Tribunal, in the said case, had not considered Section 26 of the National Green Tribunal Act, 2010.
53. The senior counsel Mr. Khambata, Mr. Sathe, counsel Ms. Sharmila Deshmukh and Mr. Sanket Mone all have specifically highlighted the powers of National Green Tribunal under section 26 of the National Green Tribunal Act. It was rightly pointed out that National Green Tribunal Act of 2010 is itself a complete code and Chapter III states about jurisdiction, powers and proceedings of the Tribunal. Section 14 makes it clear that the Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment is involved. Section 15 states that the Tribunal is empowered to pass the orders of relief and compensation. Chapter IV of the said Act is about the penalty for failure to comply with orders of Tribunal. Thus, the legislature while giving powers of remedial compensation to the Tribunal has not left the Tribunal toothless but the Tribunal is armed with penal powers for non-compliance or disobedience of its orders and punish a defaulter to the extent of 3 years or with fine which may extend to Rs. 10 crores or both and in case the contravention continues, with additional fine which may extend to twenty-five thousand rupees for everyday can be imposed.
54. Thus, in view of Section 26 of National Green Tribunal Act and considering the entire scheme of National Green Tribunal Act for the contravention of the orders passed under National Green Tribunal, the efficacious and proper remedy available to the complainant is under section 26 of the Act. The Magistrate has issued process under section 15 of Environmental Protection Act and other sections. Section 15 of the Environmental Protection Act states as follows:
"15. Penalty for contravention of the provisions of the Act and the rules, orders and directions.
(1) Whoever fails to comply with or contravenes any of the provisions of this Act, or the rules made or orders or directions issued thereunder, shall, in respect of each such failure or contravention, be punishable with imprisonment Page 4 of 6 for a term which may extend to five years or with fine which may extend to one lakh rupees, or with both, and in case the failure or contravention continues, with additional fine which may extend to five thousand rupees for every day during which such failure or contravention continues after the conviction for the first such failure or contravention.
(2) If the failure or contravention referred to in sub-section (1) continues beyond a period of one year after the date of conviction, the offender shall be punishable with imprisonment for a term which may extend to seven years."
55. Under section 26, the Tribunal enjoys penal powers which are also available under section 15 to Judicial Magistrate First Class under the Environment Protection Act. A question raised before the Court is whether the order passed by National Green Tribunal can be subject matter of Section 15 of Environment Protection Act. A breach of the orders passed under the act by any authority or non-compliance of the provisions of the Act by the petitioner/accused can be the subject matter under section 15. Similarly, the orders or directions issued under the Environment (Protection) Act if not obeyed or implemented also comes under the clutches of Section 15 of the Act. It can be in view of the terms used in Section 15 of the Environment (Protection) Act, however, undoubtedly, the efficacious remedy available to the complainant is under section 26 of the National Green Tribunal Act."
6. When we enquired from the learned counsel for applicants as to against which particular Officer, he is seeking action to be taken, he has pointed out before us that as per Section 28 of the National Green Tribunal Act- 2010, head of the concerned Government Department would be liable to be punished for non-compliance of the order passed by this Tribunal. In this regard, we made a further query from him as to who is the head of the Department of respondent No.6, he replied that the same would be the Chairman of the MPCB and after that, he has sought time to bring an amendment in the array of parties of the present misc.
application. It would be open to the applicants to implead the above-
mentioned party, if they wish so. However, looking to the fact that allegation is that respondent authority has not proceeded till date to take action in compliance with this Tribunal's Order quoted above passed in Page 5 of 6 above-mentioned execution application, we deem it appropriate to admit the present misc. application and accordingly admit the same.
7. Registry is directed to issue Notice to the respondents, returnable within 04(four) weeks.
8. Applicant is directed to take necessary steps for service to the respondents by both ways (Dasti as well as by Registered Post) and also on available e-mail/WhatsApp and submit service affidavit within one week.
9. Applicant is also directed to provide copy of the application and relevant documents to the respondents within a week.
10. Respondents are directed to submit their reply affidavits within four weeks and also circulate the same to the applicant as also other respondents by available e-mail.
11. Rejoinder, if any, is directed to be submitted within one week thereafter.
Put up this matter for further consideration on 25.07.2024
12. Dinesh Kumar Singh, JM Dr. Vijay Kulkarni, EM May 03, 2024 Misc. Application No.05/2024(WZ) In Execution Application No.12/2022 In Original Application No.80/2020(WZ) P.Kr Page 6 of 6