National Green Tribunal
Sushil Raghav vs Moef on 16 May, 2024
Item No. 11 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Execution Application No. 33/2021
In
Original Application No. 68/2021
Sushil Raghav Applicant
Versus
Union of India & Ors. Respondent(s)
Date of hearing: 16.05.2024
CORAM: HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Mr. Rahul Choudhary & Ms. Shreepurna Dasgupta, Advs. for Applicant
in E.A 33/2021
Respondent: Mr. Bhanwar Pal Singh Jadon, Mr. Chetan Jadon & Mr. Hardik Saxena,
Advs. for the State of UP
Mr. Pradeep Misra & Mr. Daleep Dhyani, Advs. for UPPCB (Through VC)
Ms. Ruchira Gupta & Ms.Pooja Tripathi, Advs. for UPSIDC
Mr. Malak Bhatt (Through VC), Ms. Neeha Nagpal & Mr. Shreyansh
Chopra, Advs. for Ghaziabad Nagar Nigam
ORDER
1. This application has been filed seeking execution of the order dated 19.03.2021 passed in O.A. 68/2021. In the O.A., the applicant had sought the remedy to prevent untreated sewage/effluent which was being discharged in the Strom Water Drain in Karkarmodel situated in Municipal Corporation, Ward No. 43 at Sahibabad, Ghaziabad. The Tribunal in the order dated 19.03.2021 took note of the fact that the issue was already considered and dealt with in the order dated 27.01.2021 in O.A. No 2012 in Manoj Mishra Vs. Union of India & ors. The Tribunal also noted that the Yamuna Monitoring Committee was appointed by the Tribunal and it had submitted the report which was dealt with in the orders of the Tribunal dated 06.07.2020 and 27.01.2021 and had quoted the relevant part of the report of the Committee. 1
2. Learned Counsel for the applicant has relied upon the recommendation No. 4 in the report which reads as under:
"4. Implementation of Septage management by December 20 in all areas which are sewered."
The Tribunal in the order dated 19.03.2021 also took note of the fact that on 06.07.2020 and 27.01.2021 the direction was issued to State of UP to take further action in terms of the above recommendation which was one of the seven such recommendations of the Committee.
3. The Tribunal thereafter took note of the further report of YMC dated 07.12.2020 which was accepted and in the case of Manoj Mishra Supra the in paragraph 23 certain direction were issue as under:
"23. Accordingly, we direct that in terms of directions of the Hon'ble Supreme Court and earlier orders of this Tribunal, henceforth the Chief Secretary, NCT of Delhi, in coordination with other authorities (such as, Additional Chief Secretary Urban Development, DDA, IDMC, DPCC, DJB) and the Chief Secretaries of Haryana and UP may personally monitor the progress, by evolving effective administrative mechanism to handle grim situation caused by years of neglect. Causes of failure of existing mechanism and remedial measures required be addressed in the light of reports of the Committee. This needs to be further overseen at National level by the Central Monitoring Committee, headed by Secretary Jalshakti, which also includes NMCG and CPCB, in terms of earlier orders of this Tribunal. To give effect to the orders of the Hon'ble Supreme Court, the Tribunal has already directed constitution of River Rejuvenation Committees (RRCs) in all the States/UTs by order passed in OA No. 673 of 2018 in Re: News item published in "The Hindu" authored by Shri Jacob Koshy titled "More river stretches are now critically polluted : CPCB, to be headed by the Environment Secretaries of States/UTs, to prepare and execute action plans for restoration of the polluted river stretches, under the oversight of the Chief Secretaries of the States/UTs. Such action plans are already in place. The RRCs of Delhi, Haryana and UP may accordingly monitor execution of the action plans with proper inter-departmental coordination, to remedy the polluted stretches of river Yamuna in their respective jurisdiction, subject to oversight of the Chief Secretaries on quarterly basis, who may thereafter give their quarterly reports to the Central Monitoring Committee (CMC) headed by the Secretary, Jal Shakti in terms of order dated 21.09.2020 in O.A. No. 673/2018, supra."2
4. Hence, in view of the above reports and the directions/orders in the matter of Manoj Mishra Supra the Tribunal had disposed the O.A. No. 68/2021 finding the no separate order in O.A is required.
5. In this Execution Application the Tribunal had earlier passed order dated 01.11.2021 taking the view that the request made by the applicant in this E.A. goes beyond the order of the Tribunal dated 19.03.2021 and in case there is a breach of the order of the Tribunal, the applicant had remedy to file an application under Section 26 of NGT Act, 2010 and for execution under Section 25 no case was made out. Accordingly, the E.A. was rejected and this order was subject of challenge before the Hon'ble Supreme Court in Civil Appeal No. 1629 of 2022, which was disposed of by Hon'ble Supreme Court by order dated 20.02.2023 by holding as under:
"3. The appellant moved an execution application, EA No 33 of 2021, seeking execution of the order dated 19 March 2021. By the impugned order, the Tribunal has observed that the request made in the application "goes beyond what has been said in the order of the Tribunal dated 19 March 2021" and even otherwise, if there was a breach of the order of the Tribunal, the appellant would have to seek the remedy under Section 26 of the National Green Tribunal Act 2010. The Tribunal did not find that there was any case for taking recourse to its power under Section 25 for executing the order.
4. The NGT has power under Section 25 to execute its orders as decrees of a civil court. Section 26 is comprised in Chapter IV which deals with the penalty for failure to comply with the orders of the Tribunal.
5 The grievance of the appellant is that the power to impose a penalty under Section 26 will not redress the substratum or the grievance which is the discharge of untreated sewage and effluent and the absence of a sewerage system.
6 We are of the considered view that the observation of the Tribunal that there was no case for executing the earlier order under Section 25 is misconceived. The Tribunal is entrusted with the wholesome power to ensure that its orders are complied with. The absence of sewerage facilities is an important aspect which would merit the exercise of powers by the Tribunal under Section 25. The invocation of the power to levy a penalty under Section 26 will not necessarily sub-serve the purpose. 7 Accordingly, we allow the appeal and set aside the impugned order of the Tribunal dated 1 November 2021. Execution Application No 33 of 2021 is restored to the file of the National Green Tribunal.3
8 The Tribunal shall take up the application under Section 25 and consider what orders would be necessary to effectuate the original order dated 19 March 2021 of which execution was sought.
9 The appeal is accordingly disposed of."
6. Thereafter on 12.01.2024, the Tribunal had issued notice to the respondents, requiring them to file their response.
7. One communication dated 14.05.2024 has been received from Under Secretary, Environment, Forest and Climate Change Department of State of U.P. addressed to the Registrar General of the Tribunal stating that in compliance of the direction of the NGT dated 12.01.2024 necessary directions for ensuring compliance and filing compliance report have been issued to Urban Development Department, District Magistrate Ghaziabad and Nagar Ayukt, Nagar Nigam Ghaziabad vide communication dated 27.02.2024 and thereafter the direction to same authority were issued on 10.05.2024. It does not reflect any compliance of the order of the Tribunal dated 19.03.2021 passed in 68/2021 by the Chief Secretary, U.P. In fact, the so-called communication which is stated to be the report by the State of U.P. reflects that from 19.03.2021 till 22.02.2024 nothing had been done for compliance of the said order.
8. Strangely when we had put a question to the counsel appearing for the State in respect of the compliance to be done by the District Magistrate, Ghaziabad, he has answered that the District Magistrate, Ghaziabad has no responsibility and no role in the matter. Hence we require the Chief Secretary, State of U.P. to appear virtually on the next date or to file his personal affidavit explaining the above situation and also disclosing reason for non-compliance of the order.
9. The respondent no. 4, Municipal Commissioner Ghaziabad had initially taken the stand that no sewage is flowing in the storm water 4 drain but when we asked him to point it out from the compliance report of Municipal Corporation, Ghaziabad, he could not do. So called response on behalf of Nagar Nigam, Ghaziabad has been filed on 05.03.2024. We have minutely perused the same and we find that though in the index it is mentioned "Compliance Report filed on behalf of Ghaziabad Nagar Nigam" but there is no compliance report enclosed along with the index. On the contrary some communications have been enclosed therewith and from that communications also the counsel for the Municipal Commissioner, Ghaziabad could not point out any plea that sewage is not going in storm water drain. Hence, we find that an attempt has been made by the Respondent No. 4 to incorrectly state before the Tribunal that no such sewage water is flowing in storm water drain and incorrectly stating about filing of compliance report without filing any such compliance report. Hence we impose a cost of Rs. 15,000/- on the Commissioner, Municipal Corporation, Ghaziabad for filing such a misleading response before the Tribunal.
10. Learned Counsel for respondent no. 7 has stated that no compliance is to be done by respondent no. 7, which is not disputed by the counsel for the applicant therefore counsel for the applicant is permitted to delete the respondent no. 7.
11. It is worth noting that applicant has enclosed the photographs annexure A-2 page 21 to 24 along with execution application and photographs annexure A-1 page 77 & 78 along with the response dated 15.05.2024 clearly showing that sewage/water discharged from household is openly flowing in the drains. These photographs are not disputed by any of the respondents, which prima-facie reveals that the order passed by the Tribunal has not been complied with till now. 5
12. The reply on behalf of UPPCB dated 13.05.2024 has been filed and the counsel for UPPCB during the course of interaction stated that UPPCB is not responsible for taking any action and he cannot make a statement if sewage is still flowing in the storm water drain. Along with the response of UPPCB no water sample analysis report of samples taken from storm water drain have been filed. We are of the view that once an issue relating to flowing of sewage in storm water drain is raised then it is the responsibility of the UPPCB to take sample from storm water drain in question and get them analyzed to find out correct position and once the photographs are enclosed with details of the area by the applicant showing that the sewage is flowing openly then it is the responsibility of the UPPCB to find out the person responsible for the same and take appropriate action for imposition of environmental compensation. We find that UPPCB has not only failed to discharge their responsibility but an incorrect stand has been taken that UPPCB has no responsibility in this matter.
13. In above background, we give one more opportunity to the concerned respondents to comply with the order and file compliance report at least one week before the next date.
14. List on 02.09.2024.
Prakash Shrivastava, CP Arun Kumar Tyagi, JM Dr. A. Senthil Vel, EM May 16, 2024 E.A No. 33/2021 In O.A. No. 68/2021 HB 6