Efficacious Remedy For Breach Of Orders Of NGT Is Under Sec.26 Of NGT Act And Not Before Magistrate Under Sec.15 EPA : Bombay HC [Read Judgment]

While quashing the process issued by a judicial magistrate on a complaint filed under Section 15 of the Environment Protection Act 1986 alleging violation of orders of the National Green Tribunal, the Bombay High Court has observed that the efficacious remedy in such cases is to approach the NGT itself under Section 26 of the NGT Act.

"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", observed Justice Mridula Bhatkar in the judgment.

"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"

The complainant Dileep B Nivetia filed the complaint against officials of Maharashtra Road Development Corporation and Maharashtra Pollution Control Board for not taking steps in furtherance of order issued by NGT(Western Zone Bench) for reducing air and noise pollution by vehicular traffic along Bandra Worli Sea Link.

The issue raised in respect of heavy vehicular traffic at BWSL. Initially, the vehicular traffic about 4000 to 5000 vehicles per day were estimated is completely falsified be- cause within a short period, 35000 to 40000 vehicles per day were running on the said road, as per the complainant

The NGT had directed the Maharashtra Pollution Control Board (MPCB) to prescribe noise standards for use of sirens and multi-toned horns in consultation with Central Pollution Control Board (CPCB) as required under section 17(g) of Air (Prevention & Control of Pollution) Act, 1981 to avoid nuisance cause to the residence on the side of Worli sealink.

It also directed that the prescribed standards so fixed by MPCB in consultation with CPCB shall be communicated to the Transport Commissioner, State of Maharashtra and fixed standards are to be communicated to the Sirens and Multi-toned Horns Manufacturing Authorities and the Registering Authority in the State of Maharashtra and to all the concerned Authorites who are required to implement the Law, i.e., police and it is to be communicated within four months.

The Tribunal  made it clear that in case of non-compliance of the directions, the Tribunal may hold the Authority in contempt and prosecute them.

The High Court noted that "in fact the Tribunal itself has taken care of the execution of its own orders which ought not to have been ignored by the learned Magistrate while issuing process for noncompliance of the order of National Green Tribunal"

The Court also noticed that the authorities had taken steps for executing the NGT directions, and that the complaint was not specific in regard to alleged omissions.

"In criminal law, it is necessary for the complainant to make out a specific case against each accused. The general allegations are not sufficient to issue process against any person", said the Court while quashing the issuance of process.

But as a parting note, the Court appreciated the complainant's efforts and observed "I appreciate the efforts taken by the respondent/ original complainant for maintaining the ecological balance of this fully crowded city. Though the process is quashed and set aside, the mission taken by the complainant to fight against air and noise pollution cannot be underestimated".

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