National Green Tribunal
Vivek Mahna vs Govt. Of Nct Of Delhi on 11 March, 2024
Item No. 10 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 195/2023
Vivek Mahna Applicant
Versus
Govt. of NCT of Delhi Respondent
Date of hearing: 11.03.2024
CORAM: HON'BLE MR. JUSTICE PRAKASH SHRIVASTAVA, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE ARUN KUMAR TYAGI, JUDICIAL MEMBER
HON'BLE DR. A. SENTHIL VEL, EXPERT MEMBER
Applicant: Ms. Madhumita Singh, Adv. for Applicant
Respondent: Ms. Jyoti Mendiratta, Adv. with Mr. Balram Meena (Through VC), ADM,
South West Delhi
Mr. Raj Kumar, Adv. for CPCB (Through VC)
Mr. Balendu Shekhar, Adv. for DPCC (Through VC)
ORDER
1. In this Original Application, the grievance is in respect of green area and parks in Village Bijwasan and Bhartal, New Delhi, about 200 in number, owned by different people, which are being used daily for holding weddings and other social functions and violating the environmental norms and creating dust pollution on account of heavy movement of vehicles. It is also alleged that the owners/organizers of these functions are discharging sewage on open lands and roads causing huge water pollution in the area.
2. Considering the grievance, Tribunal by order dated 28.04.2023 had constituted a Joint Committee comprising of DPCC and District Magistrate, South West Delhi with the direction to the Committee to visit the site, collect relevant information and submit a factual report within two months. 1 The direction was contained in paragraph 3 of the order dated 28.04.2023 as under:-
"3. In our view, a substantial question relating to environment due to implementation of Scheduled enactment under NGT Act, 2010 has arisen but before taking any further action in the matter, we find it appropriate to obtain a factual action taken report, for the purpose whereof, we constitute a joint Committee comprising DPCC and District Magistrate, South West Delhi who shall visit the site, collect relevant information and submit a factual report within two months by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF."
3. A report dated 01.08.2023 was submitted under the signature of the District Magistrate, South West Delhi but the said report was not report by the Joint Committee as constituted by the Tribunal by order dated 28.04.2023. Along with the so called report dated 01.08.2023, a joint Inspection report by JEE, DPCC and Patwari, Revenue Department was submitted but that was not the joint Committee constituted by the Tribunal. The Tribunal in the order dated 31.10.2023 had taken note of the report dated 01.08.2023, submitted on 30.10.2023 and had observed as under:-
"4. A report on 30.10.2023 has been filed under the signature of the District Magistrate, District South West but a perusal of the said report reveals that the report is based upon the joint inspection done by JEE, DPCC and Patwari, Revenue Department. The joint inspection has not been done by the joint Committee which was constituted by this Tribunal and as per the direction of the Tribunal. A perusal of the report also reveals that the inspection was done when no function was being held at the alleged site. The violation by concerned person at the time of holding of functions can be ascertained if the inspection is done at the time when the activity is going on at the site. We also gather from the photographs that a DG set has been kept there but there is no report in respect of the pollution being caused by it."
4. Thus, the Tribunal has clearly mentioned that the Joint Inspection was not done by the Joint Committee constituted by the Tribunal and it was based upon the Joint Inspection done by the authorities which were not the Members of the Joint Committee constituted by the Tribunal. 2 Hence, on that date, the SDM, Kapashera appearing on behalf of the District Magistrate, District South West had submitted that a fresh report covering all the points reflected in the order will be submitted by the Committee after due compliance of direction of the Tribunal. The statement so made by SDM, Kapashera was recorded in the proceedings dated 31.10.2023 as under:-
"5. Ms. Namgyal Angmu, SDM Kapashera appearing on behalf of the District Magistrate, District South West has submitted that a fresh report covering all the above points will be submitted by the joint Committee after due compliance of the directions of the Tribunal.
6. Hence, we give further six weeks' time to the joint Committee to carry out the inspection keeping in view the observations made above and submit a fresh report by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF."
5. In view of the above, the Tribunal had granted further six week's time to the Joint Committee to carry out the inspection and submit a fresh report.
6. A second report dated 06.12.2023 was again submitted under the signature of the District Magistrate, District South West. The report did not bear the signature of both the Members of the Joint Committee. Hence, the Tribunal by order dated 11.01.2024 had mentioned as under:-
"4. Now again, a report dated 06.12.2023 under the signature of District Magistrate, District South West alone has been filed. It does not contain the signature of the Member or authorized representative of DPCC. The report is incomplete. It has been pointed out by the applicant that there are three banquet halls namely Crystal, Pearl and Sapphire in Krishna Greens and the report does not reflect as to which banquet hall was inspected. It has also been stated that there are toilets and washrooms in the banquet halls but they have not been inspected and it has not been disclosed as to where the sewage from these toilets is going when no sewer connection has been provided by the MCD. It has also been stated by Counsel for the applicant that even the capacity of the STP set up has not been disclosed and that the report relating to the noise pollution is in respect of the sample which was taken on 08.06.2023, much prior to the previous direction of the Tribunal. She has also pointed out that 3 the report does not reflect the number of borewells and the extent of ground water being drawn by these banquet halls."
Tribunal by order dated 06.12.2023 had directed personal presence of the District Magistrate, District South West through virtual mode today.
7. The Tribunal was constraint to direct the virtual presence of the District Magistrate, South West because the order of the Tribunal was repeatedly not complied with by the District Magistrate, South West and no Joint Report under the signature of both the Members of the Joint Committee was submitted.
8. Inspite of the clear direction of the Tribunal, the District Magistrate, District South West has not appeared virtually today. He has also not filed any application seeking exemption for appearance or disclosing any reason or difficulty on account of which he has failed to appear virtually today. Mr. Balram Meena, ADM South West, has appeared virtually and has very bluntly said that the report of the Joint Committee was already filed and that the District Magistrate is held up in some function, therefore, he cannot appear. Hence, we have no option but to impose a cost of Rs. 25,000/- for non-compliance of the repeated direction, payable by the District Magistrate, District South West which will be deposited with the Registrar General of the Tribunal within two weeks.
9. Though, the Tribunal has power to impose penalty and direct imprisonment for a term which may extent to three years, in case if the order is not complied with under Section 26 of the National Green Tribunal, 2010 Act but at this stage we do not deem it proper to take such an action. The power of the Tribunal in this regard is reflected in para 26 as under:-
"26. Penalty for failure to comply with orders of Tribunal.4
(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."
10. We are also at pains to record that though Mr. Balram Meena, ADM had appeared through virtual mode but he has not switched on his video and when we indicated it to him, he said he will login from another device but he has not logged in from another device and has not subsequently appeared even virtually.
11. Let the compliance report of this order be filed by District Magistrate, South West Delhi at least one week before the next date of hearing. Let the joint Committee also furnish the report within the same period in terms of the direction dated 28.04.2023 by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF.
12. The District Magistrate, District South West is directed to appear physically on the next date of hearing.
13. The report filed by the CPCB on 07.03.2024 will be considered on the next date of hearing.
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14. List on 06.05.2024.
Prakash Shrivastava, CP Sudhir Agarwal, JM Arun Kumar Tyagi, JM Dr. A. Senthil Vel, EM March 11, 2024 Original Application No. 195/2023 SN 6