K.V. KURUNDKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) All these four Petitions are heard together and decided finally at the stage of admission. In all these Petitions, the petitioners, who are original accused nos. 12 to 15 and 19 to 22, are challenging the order dated 8th March, 2018 passed by the learned Metropolitan Magistrate, 62nd Court, Dadar, Mumbai, issuing process under Sections 7, 8, 9, 10, 15, 16 and 17 of the Environment (Protection) Act, 1986 (hereinafter referred to as "the said Act") read with Rules 3, 3 (3-B), 5 and 14 of the Environment (Protection) Rules, 1986 (hereinafter referred to as "the said Rules") and Rules 2, 3, 4, 7 and 8 of the Noise Pollution (Regulation and Control) Rules, 2000 (hereinafter referred to as "the Noise Rules") and, therefore, all these Petitions are disposed of by a common order.

(2.) It is the case of the complainant i.e., respondent No.2 that the Government under the supervision of accused No. 12 i.e., Maharashtra State Road Development Corporation Ltd. (hereinafter referred to as "the MSRDC") took a policy decision to construct Bandra Worli Sea Link Project (hereinafter referred to as "BWSL"). At that time, accused No. 12 i.e., the MSRDC received an Environmental Clearance for construction of BWSL Project. BWSL Project was completed and it was inaugurated on 1st July, 2009, and was made available to public. It is the case of the complainant that thereafter, it was noticed that after inauguration of the BWSL Project, nearly 45,000 additional vehicles ply per day on this road against the earlier vehicle movement of around 3,000 to 5,000 per day and, therefore, there is tremendous increase in vehicular traffic in Worli Sea Face area leading abnormal increase in the levels of air and noise pollution. The level of the air pollution is beyond the National Ambient Air Quality Standards (hereinafter referred to as "NAAQS") issued by Central Pollution Control Board (hereinafter referred to as "CPCB"). The complainant has relied on the studies conducted by National Environmental Engineering Research Institute (hereinafter referred to as "NEERI") and the noise monitoring conducted by accused No. 21. The noise pollution has exceeded the levels prescribed under the Noise Rules. The air and noise pollution is a direct cause of the traffic movement in BSWL. According to the complainant, liberty was granted by this Court in Writ Petition No. 992 of 2010, therefore, the complainant had moved before the National Green Tribunal (hereinafter referred to as "the NGT") by filing an Application No. 35 of 2011. In the said Application, on 28th July, 2016, the NGT had passed the order of amicable settlement. Pursuant to which, certain directions were given, however, till today, there is no change in the noise and air pollution levels. Hence, the complainant, before filing the complaint, gave prerequisite notice of 60 days as contemplated under Sec. 19(b) of the said Act to all the respondents for violation of the relevant Sections of the said Act so also the said Rules and also for breach of Notification No. MIS/2014/CR 71/ TC1 dated 31st July, 2014 issued by Environment Department, Government of Maharashtra. Thereafter, the complainant lodged a private complaint in which, the learned Magistrate considered the complaint and the documents placed before it and passed the following order on 8th March, 2018 :

(3.) Mr. Khambata, the learned Senior Counsel for the petitioners/accused No. 12-Maharashtra State Road Development Corporation Ltd. and accused no. 13-R.L. Mopalwar, Vice- Chairman and Managing Director, Maharashtra State Road Development Corporation Ltd. in Writ Petition No. 3256 of 2018, has submitted that the order of issuance of process against the petitioners/accused Nos. 12 and 13 is bad in law as the complaint and the documents relied therein do not disclose any offence committed by the petitioners/accused Nos. 12 and 13. He has relied on the Notification dated 31st July, 2014, which was issued by the Government of Maharashtra through Environment Department. He has argued that the process had been issued only for want violation of the order dated 11th Oct., 2013 passed by the learned Members of the NGT in Misc. Application No. 202 of 2013. The petitioners/ accused Nos. 12 and 13 were not parties to the said proceedings and the said order was also not against the petitioners/ accused Nos. 12 and 13 i.e., the MSRDC and its Chairman. He has pointed out that the complainant had not given statutory notice under Sec. 19 (b) of the said Act to the petitioners/ accused Nos. 12 and 13. He has further pointed out paragraph No.6 of the said Notification wherein it is mentioned that the authorities responsible for implementation of the standards and their use in the State to control air and noise pollution are different authorities, but not the petitioners/accused Nos. 12 and 13. Hence, there is no violation either of the order passed by the NGT or also the directions given in the said Notification and, therefore, the order of issuance of process against the petitioners/ accused Nos. 12 and 13 is to be dropped, quashed and set aside.