Post on 27-Mar-2018
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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH
NEW DELHI …………..
APPLICATION NO. 86 OF 2013
In the matter of:
1. Rayons-Enlighting Humanity Through its Secretary, Marwari Ganj, Near Labour Stand, Bareilly-243005, U.P.
2. Latif Beg, Village Padarathpur, Bareilly-243005, U.P.
……………………………Applicants Versus
1. Ministry of Environment and Forests Through the Principal Secretary, Paryavaran Bhawan CGO Complex, Lodhi Road New Delhi-110003
2. Uttar Pradesh Pollution Control Board. PICUP Bhawan, III Floor, Vibhuti Khand, Gomti Nagar, Lucknow-226016, U.P.
3. State Level Environment Impact Assessment Authority Directorate of Environment, Uttar Pradesh Dr. Bhim Rao Ambedkar Paryavaran Parishar, Vineet Khand-1, Gomti Nagar Lucknow-226010, U.P.
4. Nagar Nigam,
Bareilly, U.P. …………...Respondents
Counsel for Applicants :
Mr. Raj Panjwani, Sr. Advocate and Mr. Aagney Sail, Advocate for Applicants
Counsel for Respondents :
Mr. Neelam Rathore, Advocate for Respondent No.1 Mr. Savitri Pandey, Advocate for Respondent No.3 Mr. Daleep Kumar Dhayani, Mr. Pradeep Misra, Advocates for Respondent No.3 Mr. Anil Nag, Advocate for Respondent No.4
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APPLICATION NO. 99 OF 2013
In the matter of : Invertis University Invertis Village, Bareilly- Lucknow Highway NH-24, Bareilly Uttar Pradesh-243123
…..Applicants
Versus
1. Union of India, Through Secretary, Ministry of Environment and Forests Paryavaran Bhawan CGO Complex, Lodhi Road New Delhi
2. State Level Environment Impact Assessment Authority Directorate of Environment, Uttar Pradesh Dr. Bhim Rao Ambedkar Paryavaran Parishar, Vineet Khand-1, Gomti Nagar Lucknow.
3. Uttar Pradesh Pollution Control Board.
Through Member Secretary, PICUP Bhawan, III Floor, Vibhuti Khand, Gomti Nagar, Lucknow Uttar Pradesh
4. Municipal Corporation, Bareilly
Through Commissioner Nagar Nigam Office, Bareilly Uttar Pradesh
…….Respondents
Counsel for Applicants :
Mr. Sanjay Parikh, Advocate with Mr. Rahul Choudhary
Counsel for Respondents :
Mr. Neelam Rathore, Advocate for Respondent No.1 Mr. Savitri Pandey, Advocate for Respondent No.2 Mr. Daleep Kumar Dhayani, Mr. Pradeep Misra, Advocates for Respondent No.3
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APPLICATION NO. 100 OF 2013
In the matter of :
1. Jyoti Mishra, W/o Sh. Yogesh Pandey, Village Rajau Paraspur, Bareilly-243001, U.P.
2. Vinesh Pal Singh, S/o Mathura Singh, Village Gopal Pur, Bareilly-243001, U.P.
3. Hariom Singh S/o Ajay Pal Singh, Village Gopal Pur, Bareilly-243001, U.P.
4. Sanjay Sagar S/o Ram Das, Village Rajau Paraspur, Bareilly-243001, U.P.
5. Arif Ali S/o Ashique Ali, Village Bhindaulia, Bareilly-243001, U.P.
6. Farzand Ali S/o Liaquat Ali, Village Padarath Pur, Bareilly-243001, U.P.
……………………….Applicants Versus
1. Ministry of Environment and Forests, Union of India Through Secretary, Paryavaran Bhawan CGO Complex, Lodhi Road New Delhi-110003.
2. State Level Environment Impact Assessment Authority Directorate of Environment, Uttar Pradesh Dr. Bhim Rao Ambedkar Paryavaran Parishar, Vineet Khand-1, Gomti Nagar Lucknow.-226010
3. Uttar Pradesh Pollution Control Board.
Member Secretary, PICUP Bhawan, III Floor, Vibhuti Khand, Gomti Nagar, Lucknow-226016, U.P.
4. District Magistrate,
Bareilly-243001, U.P.
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5. Bareily Developmnt Authority,
Through Chairman, Bareilly-243001, U.P.
6. Municipal Corporation, Bareilly Through Commissioner Nagar Nigam Office, Bareilly-243001, U.P.
…….Respondents
Counsel for Applicants :
Mr. Gaurav Mitra, Advocate with Mr. Kartik Nagarkatti, Advocate for Applicants
Counsel for Respondents :
Mr. Neelam Rathore, Advocate for Respondent No.1 Mr. Savitri Pandey, Advocate for Respondent No.2 Mr. Daleep Kumar Dhayani, Mr. Pradeep Misra, Advocates for Respondent No.3
JUDGMENT
PRESENT :
Hon’ble Mr. Justice Swatanter Kumar (Chairperson)
Hon’ble Mr. U.D. Salvi (Judicial Member)
Hon’ble Dr. D.K. Agrawal (Expert Member)
Hon’ble Dr. G.K. Pandey (Expert Member)
Hon’ble Dr. R.C.Trivedi (Expert Member)
Dated : July 18, 2013
JUSTICE SWATANTER KUMAR, (CHAIRPERSON):
1. The State level Environmental Impact Assessment Authority,
(for short ‘SEIAA’), in its meeting dated 19th December, 2012
agreed with the recommendations of the State Environmental
Appraisal Committee, (for short ‘SEAC’) and declared that the
Nagar Nigam (Municipal Corporation), Bareilly, Respondent No.4,
was not required to take Environmental Clearance (for short “EC”)
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for Municipal Solid Waste Management (for short “MSWM”)
Project, Bareilly, under the EIA Notification of 2006 (for short the
‘Notification’). Vide its letter of the same date, it so informed the
Nagar Nigam, Bareilly. Inter alia, the legality, correctness and
validity of this letter dated 19th December, 2012 have been
challenged in the following applications:
(i) In Application No.86 of 2013, the petition filed by
Rayons-Enlighting Humanity, a Society registered under
the Society Registration Act, 1860, it has prayed that the
above letter dated 19th December, 2012 be quashed, and
that the Ministry of Environment and Forests (for short
‘MoEF’), be directed to review the Municipal Solid Waste
Management Rules, 2000 in the light of the judgment of
this Tribunal dated 11th October, 2011, passed in
Original Application No. 2 of 2011; Respondents No.2
and 3, the Uttar Pradesh Pollution Control Board, and
SEIAA respectively, should be directed to initiate the
process of seeking EC in terms of the Notification for the
MSWM project of Respondent No.4, the Nagar Nigam,
Bareilly and also that Respondent No.4, the Municipal
Corporation, Bareilly, be directed to take the same (EC)
from the appropriate authority.
(ii) In Application No.99 of 2013, the Invertis University has
prayed for quashing of the letter dated 19th December,
2012 as well. It is further prayed that Respondent No.4
be directed to shift the site of the MSWM from the
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present site in Bareilly to any other appropriate site.
Thirdly, it has prayed for implementation of the
Tribunal’s order dated 11th October, 2011 passed in
Application No.2 of 2011; and that, the area should be
restored free from any contamination arising out of the
Solid Waste Management Plant, landfill etc. Finally, it is
prayed that the letter dated 19th December, 2012 of
SEIAA be quashed.
(iii) In Application No.100 of 2013, a group of residents of
Village Razau Paraspur, Bareilly, has prayed that since
the project in question requires EC under the EIA
Notification of 2006, no activity should be permitted to
be carried out at the site in question without seeking
such clearance. The applicants also have prayed that the
communication dated 19th December, 2012 is contrary
to the EIA Notification and the Circular dated 15th
January, 2008 of the MoEF. Lastly, they have prayed for
stay of the construction at the site as well as for
awarding compensation and damages to all the persons
who have suffered physically, mentally and financially
due to illegal construction of the said project.
2. All these three applications make somewhat common prayers
in relation to the very same MSWM project, that is sought to be
established by Respondent No.4 in village Razau-Paraspur,
Bareilly. As such, all these applications raise common questions of
law, on similar facts and even their prayers are, to some extent,
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identical to one another. We propose to dispose of all these three
applications by a common judgment.
FACTS
3. It is not necessary for us to notice the facts, as stated in each
of these petitions. Primarily, we would refer to the facts, as given in
Application No.86 of 2013. As already noticed, the applicant is a
registered society under the Society Registration Act, 1860. It is
averred that this society is formed to encourage safeguarding of the
environment and other human values in the younger generation
and has been carrying on various activities at the school as well as
other levels in furtherance of plantation, water conservation, water
harvesting, etc. As the applicant is more particularly associated
with the students and young generation, it has closely been
following the developments pertaining to the setting up of the
MSWM at Village Razau Paraspur, in Bareilly. They claim to have
made various representations to the higher authorities, and even
raised a protest in March, 2012 but in vain. Several village
Pradhans signed a memorandum against locating the project in the
vicinity of Village Razau-Paraspur. The MSWM project, as shown
vide Annexure A to the application, is very close to Invertis
University, Maharaja Agrasen Institute of Management, SG
Hospital, a water body, other villages and even NH 24. All through,
the Society has opposed the establishment of the project at the site
in question for various reasons and having failed to get redressal of
its grievances at various administrative or executive levels, they
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approach the Tribunal by institution of the present application.
4. On 20th August, 2004, the Bareilly Municipal Corporation,
known as Nagar Nigam, Bareilly, submitted an application to
Respondent No.3, the Uttar Pradesh Pollution Control Board, for
obtaining authorisation for establishment of MSWM plant at Razau
Paraspur under the Municipal Solid Wastes (Management and
Handling) Rules, 2000, (for short the rules). As per that
application, this project was for handling municipal waste and bio-
medical waste and was to include a slaughter house hanging unit.
A project report was submitted with such details to Respondent
No.3. On 3rd January, 2005, a no objection certificate (NOC) was
issued in favour of the Nagar Nigam but only for disposal of waste
of the city. It will be useful at this stage to reproduce the said no
objection certificate. It reads as under:
“In this context, in view of the recommendations received from Regional Office, Bareilly regarding setting up an Integrated Mechanised Composting Plant at property bearing No. 161, Khasra No. K/045, Annexed Gazette No. 5482 (B) 11-5-11(23)-76, Lucknow, dated 03.11.1977 at Village Razau Paraspur, Tehsil-Faridpur, District-Bareilly, total area admeasuring 21.20 acres, we hereby issue, in principle, No Objection Certificate for disposal of 500 tonnes waste per day, on the following terms –
1. The site demarcated in Bareilly Master Plan-2021 shall be used for City Solid Waste Management site.”
2. Municipal Corporation shall comply the terms by word as enumerated in Municipal Solid Waste Management (Management and Handling) Rules, 2000 and Municipal waste shall be managed in terms of guidelines, as provided in Schedule-2.
3. Landfill site shall be prepared as per landfill site specifications provided in Schedule-3.
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4. The facility for municipal waste management shall be developed as per standards provided in Schedule-4.
5. Annual progress/Assessment Report Form-2 [Site-4(4)] must be submitted on the due dates.
6. Municipal Corporation shall comply with the terms by word as enumerated in Municipal Solid Waste Management (Management and Handling) Rules, 2000 and Draft Report and specifications shall be submitted within the period of one year from the date of incorporation to the Board along with annexures and request for authorisation letter.
7. After having assessed the environmental impact assessment of the site, Environmental Impact Assessment Report shall be submitted to the Board.
8. The No Objection Certificate as hereby issued shall be valid for 5 years.
Please note that in case of non-compliance or having not complied with satisfaction of the abovesaid terms & conditions, the Board will cancel the said No Objection Certificate. Board has its rights reserved to amend/cancel the terms of the abovesaid NOC. First compliance report shall be submitted by the Municipal Corporation, Bareilly to the Board upto 3.03.2005 in compliance of specific and general terms of the abovesaid No Objection Certificate. Compliance Report shall be submitted to the Board regularly on due intervals, otherwise No Objection Certificate can be revoked by the Board.”
5. As is evident from the above, this was the NOC for setting up
an integrated mechanised composting plant of 500 tonnes waste
per day capacity at the site in question.
6. On 25th May, 2005, Respondent No.3 had written to
Respondent No.4 that no compliance report was sent by the latter
in furtherance to the NOC dated 3rd January, 2005 and the same
could be submitted within a period of one week there upon. It
appears from the record that no action was taken in furtherance to
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this letter. Respondent No.3, again, vide its letter dated 3rd
August, 2005, wrote to Respondent No.4 that despite issuing the
letter dated 25th May, 2005, no compliance report and progress
report, as per the conditions of the NOC, had been submitted and
no action had been taken by the Municipal Corporation. Again, the
aforesaid request was reiterated. Vide letter dated 24th November,
2005, while referring to all its previous un-acted upon letters,
Respondent No.3 again required Respondent No.4 to submit an
action taken report within one week from the date of that letter.
Years had gone by but still there was no response. Respondent
No.3 was compelled to write another letter on 1st September, 2006
wherein, it was specifically noticed that no construction on the
MSWM facility had been done till that date except for construction
of some staff quarters and Respondent no. 4 was directed to
comply with, various conditions stated in the NOC.
7. In the meanwhile, on 14th September, 2006, the EIA
Notification came into force. As per Entry No.7(i) of the Schedule to
the said Notification, common MSWM facility which was listed in
category ‘B’ required prior EC from the SEIAA. Here, we may
notice that there is no record placed before us which could show
that any effective step, in relation to the project, were taken by
Respondent No.4. Admittedly, no EC was obtained by Respondent
No.4 for carrying out/completion of the MSWM project. In the
meanwhile, MoEF issued a Circular clarifying applicability of the
Notification of 2006 to cases where land had been acquired before
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the EIA Notification of 1994. The said Circular dated 15th January,
2008 reads as under:
“It has been brought to the notice of this Ministry that an interpretation has been taken by some of the State Pollution Control Boards that EIA Notification, 2006 shall not be applicable for the projects for which land was acquired before the EIA Notification,1994. Further, it has been observed that State Pollution Control Boards have issued NOCs/Consent to Establish (CTE) after 14th September, 2006 without advising the project proponent to seek prior EC under EIA Notification, 2006. In this regard, the following clarification is issued-
(i) Since the EIA Notification, 1994 has now been superseded by EIA Notification,2006, all project activities listed under the EIA Notification, 2006 shall require prior environment clearance under the said Notification without linking it to the date of land acquisition, if the project activity has not commenced at the site. (ii) Only such projects listed under EIA Notification, 2006 shall not require environment clearance under the said Notification which were not listed in EIA Notification, 1994 and for which NOC was issued on or before September 14, 2006. (iii) All such projects listed in both EIA Notifications, 1994 and 2006, shall require prior environment clearance irrespective of issue of NOC if the project related activity has not yet commenced at site. The validity of NOC should not be extended without asking the proponent to seek prior environment clearance under the EIA Notification, 2006.
2. In view of the above, it is advised to the State Pollution Control Boards not to grant/extend/revalidate NOC/CTE without advising the proponent to seek environment clearance under EIA Notification, 2006 for the projects which were listed in EIA Notification, 1994 and are now also listed under EIA Notification, 2006 even if they have acquired the land before January 1994. All such projects, which were issued NOC/CTE before
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September, 2006 and listed in both the Notifications, but have not commenced project activities at the site shall not start project activity now without obtaining prior environment clearance under EIA Notification, 2006 even if the land was acquired before January 1994.”
8. On 25th January, 2008, Respondent No.4 issued a notice
inviting tenders for setting up of the MSWM project at Bareilly.
Some clarifications thereto were also issued on 7th March, 2008.
On or about 26th June, 2008, an agreement was signed between
Respondent No.4 and M/s AKC Developers Private Limited for
setting up of the MSWM project at Village Razau Paraspur,
Bareilly.
9. The NOC was issued by Respondent No.2 on 3rd January,
2005 and was valid for a period of five years. Thus, it came to be
expired on 2nd January, 2010. Keeping in view certain exigencies
and other attendant circumstances, Respondent No.4 amended its
agreement dated 26th August, 2008 with M/s AKC Developers Pvt.
Ltd. on 10th March, 2011. After amendment of the agreement with
the company, on 6th June, 2011, Respondent No.4 applied for
authorisation for operating the MSWM project which was,
according to them, under construction at the site in question.
10. The Bareilly Master Plan, 2021 was prepared by the State
Government of Uttar Pradesh on 8th January, 2012 and the site in
question was designated and earmarked for social, cultural and
research based organisational services. Vide letter dated 10th
February, 2012, the Secretary, Bareilly Development Authority,
wrote to Respondent No.4 stating that, according to the Master
Plan 2021, the land use of the project site was for social, cultural
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and research institutions and not for any other activity. Having
received the application dated 6th June, 2011 of Respondent No.4,
after the period of five years, as contemplated in the NOC dated 3rd
January, 2005, Respondent No.3 wrote to Respondent No.4 on 5th
March, 2012 that the application was incomplete, and therefore,
no permission, as requested, could be granted. In this letter, it was
specifically noticed that the period of five years had lapsed and no
action in furtherance thereto had been taken by Respondent No. 4.
It was further noticed that no request had been made by
Respondent No.4 for extension of the NOC. Another important
aspect that was disclosed in this letter for the first time by
Respondent No.3 reads as under:
“Presently, as per EIA Notification 2006 regarding environmental sanction from the Ministry of Environment and Forests, Govt. of India, which is effective from 14th September, 2006, the compulsion for seeking environmental approval has been made compulsory for Solid Waste Management Project. In this context, nothing has also been done by Municipal Corporation, Bareilly. Even no report has been sent to the State Board till date after making an Environment Impact assessment report in compliance of the said No Objection Certificate. At present, many universities and population has been established in surrounding areas of the site and the matter is also pending before the Hon. High Court”
11. In view of this, the application made by Respondent No.4 for
seeking authorisation for operating the MSWM project was
specifically declined. Again, vide its letter dated 11th July, 2012,
Respondent No.2 informed Respondent No.4 that the EIA report be
sent to the Board, which had not been submitted till that date,
without which it would not be possible for the Board to consider
the application for authorisation. This was in response to the letter
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dated 17th March, 2012 of Respondent No.4 to Respondent No.2
that they had appointed M/s Grass Roots and Creation India Pvt.
Ltd. for Rapid Environmental Impact and General Environmental
Assessment Report for operating the said project. Again on 22nd
November, 2012, Respondent No.2 wrote to Respondent No.4
asking for technical and factual remarks as well as reply to the
objections raised by the Invertis University. It specifically directed
R-4 that no construction activity should be carried out until
authorisation was issued.
12. The relevant extracts of this letter read as under:
“In this context, you are further directed that you should not carry out any work for establishing Municipal Waste Management Project at Razau Paraspur for disposal of solid waste of the City until obtaining valid authorisation letter issued by State Board under Rule 4, Sub-Rule (2) of Municipal Solid Waste Management (Management and Handling) Rules, 2000, otherwise you will be responsible for any such violation.”
13. The matter in relation to Respondent No.2 rested. However,
the SEAC, in its meeting dated 11th December, 2012, took the view
that Respondent No.4 was not required to take EC in terms of the
Notification and it communicated the same to SEIAA, Uttar
Pradesh, which had already noticed and accepted the said finding
and vide letter impugned herein wrote to Respondent No.4 on 19th
December, 2012 that no EC was required to be obtained. After all
these years and all of a sudden on 8th January, 2013, Respondent
No.4 wrote to Respondent No.2 to grant extension of NOC dated 3rd
January, 2005. Respondent No.2, vide its letter dated 15th March,
2013 not only extended the validity of the NOC till 31st December,
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2013 while making the terms and conditions of the NOC
applicable, but also vacated the prohibitory order that had been
passed by it vide its letter dated 5th March, 2012 banning all
construction activities. In this letter, it was also informed that the
orders were subject to the Public Interest Litigation pending in the
High Court vide Writ Petition No.51327/2012. Furthermore and
during the pendency of the present petition, Respondent No.2 even
issued authorisation in favour of Respondent No.4 on 28th March,
2013 in response to its application dated 19th March, 2013.
14. It requires to be noticed here that right from the time it was
decided to establish a MSWM plant at the site in question, it has
been a matter of serious litigation before the High Court from time
to time. Right in the year 2001, a Writ Petition was filed in the
High Court by the affected villagers, University and other
institutions. In Writ Petition No. 2089 of 2001, Invertis Institute v.
Nagar Maha Palika, Bareilly, the High Court, vide order dated 18th
January, 2001, disposed of the writ petition noticing various
grievances, and directed Respondent No.1 to consider various
aspects and take appropriate action within four weeks of the order.
In Writ Petition No. 7943 of 2005 by the same Institute, the High
Court observed that even if the site in question had been vested in
the Nagar Nigam and utilised as a dumping ground, even then it
did not give it a licence to create nuisance. The dumping ground
must be maintained and protected so as to ensure that it does not
adversely affect the environment or cause any nuisance to others.
Noticing that the area stood urbanised and the Master Plan and
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sanctioned plans had come into force, it therefore directed that the
dumping ground be shifted if there is no other alternative. The
Public Interest Litigation vide Writ Petition No.5672 of 2012 which
related to the present MSWM project, came up for hearing before
the Chief Justice’ Bench of Allahabad High Court on 21st March,
2012 and the Court noticed that admittedly, the NOC had expired
as the same had not been renewed. Noticing the contention of the
counsel that since conditional NOC had expired, the dispute no
longer survived, the Bench thus passed the following order:
“We are of the view that since the conditional N.O.C. granted in favour of the Corporation, no longer survives, this petition has lost its efficacy and has rendered infructuous. The petition is, accordingly, dismissed as infructuous”.
15. Another Public Interest Litigation No. 51327 of 2012 also
came up before the same very Bench. The Bench passed the
following order on 3rd October, 2012:
“We find that there is no government order for the purpose of installation of Solid Waste Management Plant as yet at the proposed site. However, we are of the view that if it has not been done, it will be done only after obtaining permission from the State Level Environment Impact Assessment Authority. The interim order will continue till the next date of listing.”
16. The Court vide its order dated 19th November, 2012 in civil
Misc. Application No. 335640 of 2012 clarified the afore-mentioned
order to remove any ambiguity. The relevant part of the said order
reads as under: the relevant part of which reads as under:-
“We clarify herein that if no permission is granted with regard to installation of Solid Waste Management Plant by the State Level Environment Impact Assessment Authority, no such work can be carried out. Since the second last sentence of the
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penultimate paragraph the words ‘ ……if it has not been done, it will be done only after obtaining permission from the State Level Environment Impact Assessment Authority’ is incorporated, most likely the respondent has taken the advantage of the situation. Therefore, the order will be read as no work will be carried out without permission of the State Level Environment Impact Assessment Authority”
17. Various other orders had been passed by the High Court and
at no point of time, had the High Court, either directly or impliedly,
permitted the establishment of the MSWM plant at the site in
question. It has to be kept in mind that that till the year 2001, no
work of the project had been carried out at the site in question
when the High Court had passed orders and subsequently directed
that no work could be carried out without specific permission of
the SEIAA, which was never granted. As already noticed, the
authorities concerned, in fact, observed vide their letter dated 5th
March, 2012 that EC was not necessary. It is evident from the
above facts that at no point of time, the Nagar Nigam or its
predecessor had taken permission to carry out any work in relation
to the MSWM plant. In order to answer the principal controversy
arising in the present case, we must, for the purposes of proper
appreciation of the legal and environmental issues involved in the
present case, formulate the following questions and answer them
accordingly:-
(A) Whether the site where the MSWM project has now been constructed is a permissible site in accordance with law.
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18. The project site is one of the most significant facets of any EC
matter and before issuance of NOC for establishment of any
project, more particularly a MSWM project, it has to be first seen
that it does not lead to any environmental damage or public
nuisance. The High Court had even directed the Respondent-
authorities to ensure that even if it is used for dumping, it should
not create any public nuisance and if no alternative is available,
the project should be shifted. These orders of the High Court
related to the dumping site and not construction of MSWM plant.
Obviously, MSWM plant has to meet much more stringent
standards of environmental protection so that once such plant
starts functioning, there is no environmental degradation,
particularly where there are a large number of residential and
institutional areas situated in the vicinity of the project. The letter
dated 3rd January, 2005, the stated NOC, issued by Respondent
No.3 is the backbone of the case advanced on behalf of Respondent
No.4. The condition No.1 of the said NOC, as noticed earlier, states
as under:-
“The site demarcated in Bareilly Master Plan 2012 shall only be used for city solid waste management site”.
19. Further, in terms of the NOC, the land fill site had to be
prepared as per the land fill site specifications provided in
Schedule 3 to the Rules, and the Nagar Nigam was to comply with
the Municipal Solid Wastes (Management and Handling) Rules,
2000 and municipal waste had to be managed in terms of the
guidelines, as provided. There is no dispute regarding the Master
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Plan 2021 being prepared and published. A copy of the Master
Plan has been placed on record as Annexure A.14 by the applicant.
It was termed as Bareilly Master Plan 2021. As per clause 5.1.13.3
of this Master Plan, a total area of 31.88 hectares for different sites
for collection and disposal of solid waste has been proposed. One
site between Lucknow Road to Pilibhit Bypass, the second between
Kathgodam Road and Moradabad Road, the third between
Moradabad Road and Budaun Road, and the fourth between
Budaun Road and Lucknow Road, measuring 2.88, 8.96, 8.84 and
11.20 hectares respectively were provided. In other words, as per
the Master Plan, four sites were provided for collection and
disposal of municipal waste but the site in question was not one of
them. In fact, these four sites were for establishment of MSWM
plants. The respondents have not been able to demonstrate before
us by any cogent and reliable evidence that the site in question
was the site identified for establishment of MSWM plant. Vide letter
dated 10th April, 2013, office of the Joint Director, Bareilly Regional
Planning Division, Urban and Rural Planning Department,
Bareilly, Uttar Pradesh, had written to the Vice-Chancellor, Invertis
University, providing details of disposal centres for the proposed
solid waste in paragraph 3 of the said letter. In this letter, the site
in question had not been indicated as the sanctioned or even the
proposed site for establishment of MSWM plant. Respondent No.4,
while relying upon some reference of the Master Plan, attempted to
justify the selection of the site as a permissible site for MSWM
plant. In fact, they relied upon the notification dated 3rd November,
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1977. Let us examine the notification dated 3rd November, 1977
(Annexure R.11). This notification was issued under Sections 4 and
6 read with Section 17(4) of the Land Acquisition Act, 1974. The
land was acquired for a public purpose, namely for establishment
of trenching ground in Village Razau Paraspur in terms of Section
7. On a plain reading of the notification, it is clear that the land
was never acquired for construction or establishment of an MSWM
plant. It was neither notified as such nor was specified in the
Master Plan as a site for that purpose. Merely because the land
has been acquired for the purpose of using it as a trenching
ground i.e. a dumping area, would not per se satisfy the
requirement that it was a classification of land for the
establishment of an MSWM plant and would deem to be earmarked
for that purpose under the provisions of the Master Plan.
20. Every area has to be developed in accordance with the
provisions of the relevant laws in force and the Master/Zonal Plan
of that area. Every development authority has to notify a Master
Plan. It has to prepare a draft plan, give public notice, invite
objections and thereupon conduct an inquiry and hearing, as
contemplated under the law before it is finalised. Once the
development plan is finalised, then it becomes a statutory
document. The notified plan has a legal sanction and the
provisions contained therein are mandatory. They are incapable of
being altered or varied without following the due process
prescribed in law. The Supreme Court, in the case of NDMC and
Ors. v. Tanvi Trading and Credit Private Limited & Ors. (2008) 8
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SCC 765, took the view that even in terms of guidelines issued in
relation to a new building till finalisation of the Master Plan, all
controls would have statutory force and would be treated as
mandatory and also that such guidelines, so far as consistent with
the Master Plan, would continue to be binding even after coming
into force of the Master Plan. Similar view to the effect that the
Master Plan has the force of law and is mandatory was reiterated
by the Supreme Court in the case of Noida Entrepreneurs
Association v. NOIDA & Ors. (2011) 6 SCC 508.
21. The Municipal Solid Wastes (Management and Handling)
Rules, 2000 were in force when Respondent No.4 had made an
application for obtaining authorisation from Respondent No.2. We
must notice that this application is stated to have been filed under
Rules 4(2) and 6(2) of these Rules. Every municipal authority
within its territory is responsible for implementation of the
provisions of these Rules. Every State Board or the Committee is
responsible for monitoring compliance of the standards regarding
ground water, ambient air quality and the compost quality
including incineration standards as specified in the Schedule.
Application for authorisation has to be filed in Form I and after
following the prescribed procedure, the authorisation applied for
can be issued for a given period. Upon expiry of such period, a
fresh authorisation is required. In terms of Rule 6 of the Rules, the
application has to be considered and monitoring done in
accordance with Schedules 2, 3 and 4 to these Rules. In terms of
Schedule 3, which deals with specifications for land fill sites, site
22
selection by itself is a serious exercise. When a site falls under the
development area, it is the responsibility of the development
authority to identify the land fill site. While considering the land fill
sites, due care has to be taken in relation to prevention of
pollution, the facilities to be provided as well as maintenance of
ambient air quality. These are the various criteria which have to be
examined while locating a site within the ambit and scope of these
Rules.
22. Form I, which had been submitted by Respondent No.4 on
28th August, 2004 incidentally stated about the sites as follows:
“5.1 Processing of Waste (i) Location of site
Two old sites Razau Paraspur5.67 Hectt. & Bakerganj 8.58 Hectt. Both sites are under dispute. Proposal for purchase of New site under the guidance of HUDCO.
5.2 Disposal of Waste (i) Number of Sites identified
Two old sites Razau Paraspur5.67 Hectt. & Bakerganj 8.58 Hectt. Both sites are under dispute. Proposal for purchase of New site under the guidance of HUDCO.
(v) Details of methodology or criteria followed for site selection
Proposal for new site selection as prescribed under the rule of Solid Waste Management-2000.
(vi) Details of existing site under operation
It is a temporary arrangement for dumping of garbage till Central Govt. sponsored scheme operable. Swalanagar in area 1.5 Acre.”
23
23. From the bare reading of the columns of the Form submitted
by Respondent No.4, it is clear that the site was under dispute and
the proposal for purchase of new sites under the guidelines of
HUDCO was under consideration. It was also specifically
mentioned in this Form that agreement was to be finalised after
site selection. In the Master Plan, four sites for MSWM had been
identified and it clearly establishes that these were not the sites
which have been finalised by any of the statutory authorities to be
a fit site for establishment and operation of such a plant. On the
contrary, there were objections from all quarters i.e. institutions,
villagers, authorities and even Respondent No.3 with regard to
issuance of appropriate authorisation for establishment and
operation of such a plant at the site in question. We may also
notice that in terms of Rule 6.2 of these Rules, it was obligatory
upon the authorities concerned to examine the proposal and take
into consideration the views of other agencies like State Urban
Development Department, Town and Council (Country) Planning
Department, Urban Area based Authority and the Ground Water
Board or any such other agency prior to issuance of authorisation.
In the present case, whatever was told by the development
authority has not been taken into consideration at all by
Respondents No.2 and 3 while the views of the Air Force base
authority, which was situated at a short distance, were not even
obtained. In fact, as back as February, 2006, the Station
Commander, Air Force, had written to the Nagar Nigam, objecting
to the construction of the plant near the Aerodome. It was stated
24
that it was in violation of the Aircraft Rules, 1937. Even this
aspect, in relation to the site, was not considered by Respondents
No.2 and 3.
24. The Development Authority and other authorities assigned
with the job of development have to take their decisions which are
in conformity with the regulations and the law. Any decision to the
contrary would be an action extra jus. Laconic result of collective
reading of the Master Plan, the Development Authority Act and
other relevant notifications is that the Development Authority,
Nagar Nigam, the Pollution Control Board and their respective
officers have no power to vary the land use and places prescribed
in the Master Plan, except by amending the Plan in accordance
with law, that too for a proper object and purpose. In the present
case, the land was acquired for trenching ground in the year 1977.
Even this site came under judicial chastisism in the order passed
by the High Court where the High Court, in no uncertain terms,
directed that if no alternative was available, the site should be
shifted. In other words, even using the land as a trenching ground
was not accepted at different quarters. With the passage of time, a
large number of educational institutions, hospitals and colonies
came to be constructed adjacent to the site in question. As already
noticed, no work of the project in question had commenced till the
year 2008 when the tender for construction of MSWM was invited
by Respondent No.4. The Master Plan did not identify this
particular site as a site fit for construction of an MSWM plant
though it specifically earmarked four sites for that purpose. This
25
would apparently mean that the framers of the statutory document
(Master Plan) exercised their wisdom in excluding this location
from the earmarked MSWM sites. Once the Master Plan has come
into force, then no organisation can be permitted to use the site for
establishing a plant which is going to have serious environmental
consequences.
25. It cannot be accepted that even by implication, the site in
question stood approved for the project. This is primarily for the
reason that the Master Plan specifically declares the site in
question to be earmarked for social, cultural and institutional
areas. In furtherance to such specification, a number of
institutional and cultural buildings had come up adjacent to the
site in question. Even in the reply filed on behalf of the
Respondent, it is stated that it was agricultural land and with
permission of the competent authority, it could be used for the
project. No such permission was ever taken nor even applied for.
26. Therefore, we have no hesitation in holding that the site in
question was never earmarked in the Master Plan/Zonal Plan as
an MSWM site and it was not expected of the authorities to
establish such a plant in violation of the law. It is a settled rule
that exercise of power ought not to be destructive of the law in
force. At no point of time, any attempt was made by any
appropriate or competent authority to prescribe changed use of
land of the site in question.
26
(B) NOC dated 3rd January, 2005 – its impact and the conduct of Respondent No.4
27. What was the basis of Respondent No.3 to issue NOC in
favour of Respondent No.4 in the year 2005 is a matter which
remains unexplained. But at this stage, we would proceed on the
premise that Respondent No.3 had the jurisdiction to issue such a
certificate. In the certificate dated 3rd January, 2005, besides
putting a clear restriction that the site has to be demarcated and
should be so provided in the Master Plan 2021 for the purpose of
the project, Respondent No.3 also required Respondent No.4 to
prepare and submit a report to it, after having assessed
environmental impact of the site. This, admittedly, had not been
done till the year 2012. This was a very material condition of the
NOC which, before establishment or commencement of the project,
Respondent No.4 was obliged to comply with. Respondent No.4 was
also required to submit quarterly report to the Board, which again
admittedly, had not been done for all these years. The NOC was a
conditional document and was valid for a period of five years i.e.
till the year 2010. No work of the MSWM project had been carried
out until 2008 when notice inviting tenders for setting up of
MSWM project at Bareilly was issued by Respondent No.4. The
agreement was signed in June, 2008. Apparently, no work was
executed in relation to the MSWM project as the agreement itself is
stated to have been amended and executed on 10th March, 2011.
28. The first report, in terms of NOC, was required to be
submitted by 3rd March, 2005, which admittedly has not been
done even till date.
27
29. In May, 2005, the Board itself had informed Respondent No.4
that the terms and conditions of NOC were not being complied with
and necessary action should be taken within one week thereafter.
This direction had been repeated from time to time, as already
noticed, vide letters dated 3rd August, 2005, 24th November, 2005
and 1st September, 2006, but to no avail. In the meanwhile, the
order of the High Court in relation to the site in question as a
trenching ground was passed. The High Court had passed certain
orders directing not to use the site even as a trenching ground. The
period of five years, as stated in the NOC, had come to an end on
2nd January, 2010. By that time, no application had been moved
by Respondent No.4 for renewal/extension of the NOC nor had any
work of the project been carried out at the site in question. It has
been pointed out in the reply of Respondent No.4 that expenditure
had been incurred on the project after 2005 and prior to 2012 and
thus the project work had started. We will be dealing with the legal
aspect of this contention subsequently, but as a matter of fact, it
should be noticed that the expenditure which had been incurred
even as per the voluminous records filed before us, related only to
construction of drains, staff quarters, etc. The drain which had to
be constructed and on which money is stated to have been spent
by Respondent No.4 was a drain which had nothing to do with the
project in question and was being constructed at a totally different
site and for a different purpose. To put it simply, neither the NOC
had been extended nor any work worth mentioning, in relation to
the construction of the MSWM plant, had been carried out till the
28
year 2012. Respondent No.3 had taken a definite stand that
Respondent No.4 was required to take EC in terms of EIA
Notification of 2006. In fact, vide its letter dated 5th March, 2012, it
had communicated in no uncertain terms, that authorisation for
operating the integrated mechanised composting plant was
declined. Not only this, it was at that point of time that before the
High Court of Allahabad, similar stand was taken by Respondent
No.3 and the High Court had passed the order on 19th November,
2012 that no work could be carried out without obtaining
clearance from the SEIAA. The Board, vide its letter dated 22nd
November, 2012, had also restrained Respondent No.4 from
carrying out any work for establishment of MSWM plant at the site
in question. Therefore, there were court orders as well as orders of
Respondent No.3 prohibiting Respondent No.4 from carrying out
any MSWM project activity right from the year 2010 to 2012. As
already noticed, till 2010, no project activity had at all been carried
out. Thus, the conduct of Respondent No.4 is that, on the one
hand, it did not comply with the conditions of the NOC dated 3rd
January, 2005 while, on the other, it constructed the MSWM plant
in flagrant violation of the orders of the court as well as
Respondent No.3. The Tribunal will have to take into consideration
such conduct of the applicant as it is not conducive to the rule of
fair play and hurts the interests of environment. Another
important aspect of this is that even the Executive Committee of
Respondent No.4 itself did not support this project, particularly,
with reference to the site in question. 12 members of the Executive
29
Committee of Respondent No.4 submitted a detailed representation
on 12th March, 2013 to the Chairman of Respondent No.4
requesting for calling a meeting of the Executive Committee in
terms of Section 89(2) of the Municipal Corporation Act. In that
representation, they emphasised that the site selection was against
the Municipal Solid Wastes (Management and Handling) Rules,
2000. Under these rules, this project should not be set up near a
cluster of habitation. It was stated that there were nearly four
villages situated at a distance of 500 to 1,000 metres of the
location. It was also stated that the MSWM would not even for a
period of five years due to insufficient land available whereas it
should be planned for a period of at least 30 years and should not
be located near the dense rural population surrounding the MSWM
site. They also suggested that besides all this, it was uneconomical
and injurious to public health, and therefore, should be given up
and shifted to an alternate site. It appears from the record that
none of these issues were discussed or deliberated upon at the
appropriate forum of Respondent No.4. Respondent No.3, the
Executive Committee of Respondent No.4 and even the public at
large, particularly from the institutional area, were seriously
opposed to the establishment and operation of the project site in
question. But this did not get any attention of the appropriate
authority at any level.
30
(C) Whether Respondent No.4 was required to take EC in terms of EIA Notification of 2006 and what is the effect of the circular dated 15th January, 2008?
30. As already noticed, Respondent No.4 had obtained an NOC
from Respondent No.3 on 3rd January, 2005 regarding setting up of
an integrated mechanised composting plant. This was valid for a
period of five years. During all these five years, as is evident from
the above quoted facts, nothing was done. Neither any steps were
taken nor were the conditions of the NOC complied with by
Respondent No.4. In the year 2006, a notification was issued by
MoEF providing for EC regulations. The said notification was
issued in exercise of the powers conferred by Sub-section (1) and
clause (v) of Sub-section (2) of Section 3 of the Environment
(Protection) Act, 1986, read with clause (d) of Sub-rule (3) of Rule 5
of Environment (Protection) Rules, 1986. This notification was
issued in supersession of the notification dated 27th January,
1994. In terms of this notification, under clause 2, the projects and
activities which required EC were divided in different categories.
The projects or activities in Category ‘A’ in the Schedule were
required to take EC from the Central Government in the Ministry
of Environment and Forests while those falling under Category ‘B’
were required to take clearance from the State level Environment
Impact Assessment Authority. This clearance was required to be
taken for all projects or activities – new or even modified - and even
if any change in product-mix in an existing manufacturing unit
included in the Schedule beyond the specified range was made. As
per the Schedule under item No.7(i), projects relating to Common
31
MSWM Facility projects fell under Category ‘B’ , and therefore, they
were required to take clearance from SEIAA. In addition thereto, all
general conditions were applicable to such projects. In other
words, it was obligatory upon every project proponent establishing
or operating MSWM unit to take EC from the SEIAA. This was a
statutory requirement and there was no escape from compliance
thereof. A kind of escape route to this statutory compliance was
provided by the circular dated 15th January, 2008. The said
circular reads as under:
“It has been brought to the notice of this Ministry that an interpretation has been taken by some of the State Pollution Control Boards that EIA Notification, 2006 shall not be applicable for the projects for which land was acquired before the EIA Notification,1994. Further, it has been observed that State Pollution Control Boards have issued NOCs/Consent to Establish (CTE) after 14th September, 2006 without advising the project proponent to seek prior EC under EIA Notification, 2006. In this regard, the following clarification is issued-
(i) Since the EIA Notification, 1994 has now been superseded by EIA Notification,2006, all project activities listed under the EIA Notification, 2006 shall require prior environment clearance under the said Notification without linking it to the date of land acquisition, if the project activity has not commenced at the site. (ii) (ii) Only such projects listed under EIA Notification, 2006 shall not require environment clearance under the said Notification which were not listed in EIA Notification, 1994 and for which NOC was issued on or before September 14, 2006. (iii) All such projects listed in both EIA Notifications, 1994 and 2006, shall require prior environment clearance irrespective of issue of NOC if the project related activity has not yet commenced at site. The validity of NOC should not be extended without asking the proponent to seek prior environment clearance under the EIA Notification, 2006.
32
2. In view of the above, it is advised to the State Pollution Control Boards not to grant/extend/revalidate NOC/CTE without advising the proponent to seek environment clearance under EIA Notification, 2006 for the projects which were listed in EIA Notification, 1994 and are now also listed under EIA Notification, 2006 even if they have acquired the land before January 1994. All such projects, which were issued NOC/CTE before September, 2006 and listed in both the Notifications, but have not commenced project activities at the site shall not start project activity now without obtaining prior environment clearance under EIA Notification, 2006 even if the land was acquired before January 1994.”
31. With reference to the said circular, the contention raised on
behalf of Respondent No.4 is that in terms of paragraphs (i) and (ii)
of the said circular, Respondent No.4 was not required to take any
EC.
32. Let us examine the merits of this contention with reference to
the facts of the present case. Under clause (i), all the projects listed
under EIA Notification, 2006 shall require prior EC irrespective of
the date of acquisition of land if the project activity has not
commenced at the site in question. This clause makes obtaining of
EC compulsory if the project activity has not commenced at the
site. In this clause, the expression ‘project activity’ is of
significance. The project activity has to be understood in the
context of its common understanding or common parlance. Here,
activity must have a direct nexus to the projects, as contemplated
under the notification. The expression activity must be read
ejusdem generis to the expression project. There has to be a direct
relationship between the activity and the project. It was the project
of construction and commencement of MSWM plant that required
33
EC from the competent authorities. The construction of staff
quarters per se would not require EC in the facts of the case, as it
might have been sufficient for Respondent No.4 to take clearance,
and get its plans sanctioned, from the competent authorities in
accordance with Master/Zonal Plan. The environment clearance
under the 2006 notification is relatable to entry No. 7(i) of the
Schedule to where a MSWM plant is to be set up. Thus, the activity
must be such which is directly connected with the establishment
of the plant. An activity which has a remote or inconseqential
connection to the project would not be an activity directly
connected with the project so as to fall within the ambit of the
language of the notification.
33. In the present case, the ‘project activity’ must be considered
as an activity which is related to setting up, operating and
maintenance of the MSWM plant. This activity admittedly did not
start till the year 2011 when the agreement for setting up of such
plant was made, subject to amendments between Respondent No.4
and the company which was required to set up the plant. The letter
of the Corporation and orders of Respondent No.3 clearly showed
that no activity had been carried out at the project in any case till
15th January, 2008 when the circular dated 15th January, 2008 of
the MoEF was issued. We may also notice that there were
prohibitory orders passed by the High Court as well as the Board
as late as 2010, prohibiting Respondent No.4 from carrying out
any construction at the site in question. Since no project activity
had been carried out as on the date issue of the circular and
34
subsequently, the question of Respondent No.4 taking benefit of
clause (i) of the circular in relation to exempting it from seeking EC
in terms of the notification did not arise.
34. In order to avoid the application of EIA notification of 2006,
reliance by Respondent No.4 has also been placed on the circular
dated 15th January, 2008. Before we examine the impact of clause
(ii) of the circular dated 15th January, 2008, we must understand
that this circular is a mere exercise of executive power and is not a
statutory document. The EIA notification of 2006 is a notification
having the force of law and is statutory in its contents and nature.
A circular issued by the Ministry in exercise of its executive power
cannot frustrate the operation of a statutory notification. Such a
circular has to be construed harmoniously and to ensure that it
furthers the cause of the statutory notification and does not lead to
an absurd result i.e. where the statutory notification requires EC
to be obtained, the circular cannot wipe out that effect without
amending the statutory notification issued in exercise of the
executive power. A circular can be clarificatory in nature but it
cannot be in contradiction to the statutory notification. The
purpose of such notification is to supplement the gaps, if any, left
by the statutory notification and cannot be construed in a manner
that will completely distort the application of the primary
notification. At this stage, we may usefully refer to the judgment of
the Supreme Court in V.C., Banaras Hindu University & Ors. v.
Shrikant (2006)11 SCC 42 where the Court, while dealing with the
effect of executive instructions held as under:
35
“23. We may notice a similar provision, being Clause 76 of the Bihar Services Code, which reads as under:
Unless the State Government, in view of the special circumstances of the case, shall otherwise determine, a government servant, after five years' continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave ceases to be in Government employ.
(a) The validity of the said Rule came up for consideration before the Patna High Court in Sobhana Das Gupta v. The State of Bihar and Anr. (1974) PLJR 382, wherein the said Rule was struck down relying on Jai Shanker v.State of Rajasthan (1966)IILLJ140SC and Deokinandan Prasad v. State of Bihar (1971) ILLJ 557 SC stating: I may first refer to the decision of the Supreme Court in the case of Jai Shanker v. State of Rajasthan. Regulation 13 of Jodhpur Service Regulation fell to be considered in that case. The aforesaid regulation was:
An individual who absents himself without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority. Considering this regulation Hidayatullah, J. observed: Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate
36
authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here. It may be mentioned that this case arose out of a suit where a declaration was sought that the termination of the service of the plaintiff was illegal. (b) In the case of Deokinandan Prasad v. State of Bihar (1971) ILLJ 557 SC the true effect of the decision in Jai Shanker's case was considered. A reference was also made to Rule 76 of the Bihar Service Code. In this context it was observed:
A contention has been taken by the petitioner that the order dated August 5, 1966 is an order removing him from service and it has been passed in violation of Article 311 of the Constitution, According to the respondents there is no violation of Article 311. On the other hand, there is an automatic termination of the petitioner's employment under Rule 76 of the Service Code. It may not be necessary to investigate this aspect further because on facts we have found that Rule 76 of the Service Code has no application. Even if it is a question of automatic termination of service for being continuously absent for over a period of five years, Article 311 applies to such cases as is laid down by this Court in (1966) IILLJ 140 SC . In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regulations which is as follows:
An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority. It was contended on behalf of the State of Rajasthan that the above regulation operated automatically and there was no question of removal from service because the officer ceased to be in the service after the period mentioned in the regulation. This Court rejected the said contention and held that an
37
opportunity must be given to a person against whom such an order was proposed to be passed, no matter how the regulation described it. It was further held to give no opportunity is to go against Article 311 and this is what has happened here. Therein, the law was laid down in the following terms:
The consideration on these two cases makes it clear that in the circumstance as in the present case, treating the petitioner to have ceased to be in Government employ amounts to her removal, and further that the said removal without giving her an opportunity is to go against Article 311 of the Constitution. In the circumstances of the present case, violation of Article 311 of the Constitution is writ large. There can, therefore be no doubt that the order under Annexure 2 is illegal, and the petitioner cannot be deemed to have ceased to be in Government employ on the basis of the said order or on the basis of Rule 76 of the Service Code. The Respondent herein had filed four writ petitions. Some interim orders were also passed in his favour. He did not get the benefit of any of the said orders. In his fourth writ petition, the Executive Council was directed to consider his case. It did not do so for more than two years. Why despite the High Court's order, the Vice Chancellor failed to place the matter before the Executive Council is not disclosed. The resolution of the Executive Council dated 8/9th January, 2003 was also not final. The same was placed before the High Court by way of a supplementary counter-affidavit only on 23.3.2003 whereas the matter was heard much prior thereto and the judgment was reserved. Judgment was delivered on 25th March, 2003 which again go to show that an attempt had been made by the University to stall the proceedings before the High Court. Before us only the University has taken a stand that even the Executive Council had put its seal by way of approval of the order of the Vice Chancellor. As the initial order passed by the Vice Chancellor was wholly without jurisdiction, the same was a nullity and, thus, the purported approval thereof, by the Executive Council would not cure the defect. Even if we do not take into consideration the legality, reasonableness or otherwise of the resolution of the Executive Committee, it is clear that so far as the order
38
passed by the Vice Chancellor is concerned, he failed to consider the question as to whether the Applicant was otherwise entitled to leave. The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case.
(c) In K.I. Shephard and Ors. etc. etc. v. : Union of India and Ors. (1988)ILLJ162SC , this Court held:
...It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose. {See also Assam Sillimanite Ltd. v Union of India : [1990]1SCR983 and H.L. Trehan v. Union of India : AIR1989SC568 .] We have noticed hereinbefore that the nature of leave, inter alia, was compensatory one. Although it cannot be claimed as a matter of right but an employee who had worked during summer vacation would have a legitimate expectation that he can avail the same. He was also entitled to be granted detention leave, unless there exists a just reason to refuse the same. We have noticed hereinbefore that the Head of the Department granted the leave and made recommendation for grant of permission. The Vice Chancellor even did not consider the same. An order passed by a statutory authority, particularly when by reason whereof a citizen of India would be visited with civil or evil consequences must meet the test of reasonableness. Such a test of reasonableness vis-à-vis the principle of natural justice may now be considered in the light of the decisions of this Court.
(d) The question came up for consideration before a three-Judge Bench decision of this Court, in D.K. Yadav v. JMA Industries Ltd. (1993)IILLJ696SC , wherein emphasizing the requirements to comply with the principles of natural justice while terminating the services of the employees on the touchstone of Article 21 of the Constitution of India; it was held that not only the procedure prescribed for depriving a person of his livelihood must meet the challenge of Article14 but also the law which will liable to be decided on the anvil thereof.
39
Here again, this Court opined that Article 14 requires that the procedure adopted must be just, fair and reasonable. It was furthermore held: Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. This Court opined that right to life enshrined under Article 21 would include the right to livelihood and thus before any action putting an end to the tenure of an employee is taken, fair play requires that reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. (e) In Uptron India Ltd. v. : Shammi Bhan and Anr. [1998]1SCR719 , this Court was considering the validity of the provisions of the Standing Orders of the company containing a clause that services of the workmen would be liable for automatic termination. This Court opined that if prior to resorting thereto an opportunity of hearing is not granted, such a provision would be bad in law. (f) The said legal position was reiterated in Scooters India Ltd. v. M. Mohammad Yaqub and Anr. : (2001)ILLJ7SC , where again requirement to comply with the principles of natural justice was highlighted. The matter may, however, be different in a case where despite having been given an opportunity of hearing, explanation regarding his unauthorized absence is not forthcoming or despite giving him an opportunity to join his duty, he fails to do so, as was the case in Punjab & Sind Bank and Ors. v. Sakattar Singh (2001)ILLJ174SC (g) In Lakshmi Precision Screws Ltd. v. Ram Bhagat (2002)IIILLJ516SC , a Division Bench of this Court was considering Clause 9(f)(ii) of the Standing Orders which reads as under:
40
9.(f) Any workman who, * * * * *
(ii) absents himself for ten consecutive working days without leave shall be deemed to have left the firm's service without notice, thereby terminating his service. The workman therein offered an explanation and having regard thereto, the Labour Court came to the conclusion that the action of the management in terminating the services of the workman therein was not justified. When the matter reached this Court, it was opined: Let us, therefore, analyse as to whether this particular Standing Order in fact warrants a conclusion without anything further on record or to put it differently does it survive on its own and that being a part of the contract of employment ought to govern the situation as is covered in the contextual facts. Referring to the decisions noticed by us hereinbefore, it was held: It is thus in this context one ought to read the doctrine of natural justice being an inbuilt requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from 13.10.1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorized leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed. The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated, stating: Arbitrariness is an antithesis to rule of law, equity, fair play and justice - contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law.
(h) A provision relating to abandonment of service came up for consideration yet again in Viveka Nand
41
Sethi v. Chairman, J&K Bank Ltd. and Ors. (2005)IILLJ1034SC before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding: A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.
(i) Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan AIR2000SC2783. In that case, interpretation of Rule 5(8)(ii) came up for consideration which is in the following term:
Rule: 5(8)(ii) - An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of Clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council. It was held that a show cause notice and reply would be necessary. If no show cause notice had been given, this Court held that the principles of natural justice would be held to be complied with.
24. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a notice to show cause would not make any difference as the employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.
42
25. The parties in this case proceeded on the basis that it was not a case of misconduct. The High Court, therefore, in our opinion, wrongly arrived at the conclusion that the Respondent was guilty of misconduct. In that view of the matter, it is also not necessary for us to advert to the question as to whether in the facts and circumstances of this case, the High Court could have directed modification in the quantum of punishment without arriving at a finding that the same was shockingly disproportionate to the gravity of the charges made against the Respondent herein. The fact situation obtaining in this case is entirely different. Not only the Respondent made all attempts to join his duties, but, the situation prevented him from doing so beyond his control. Furthermore, in this case, the Vice Chancellor had no jurisdiction at all. Even the notification dated 25.03.1998 had no application.”
35. Still in the case of State of U.P. and Ors. v. Saraya Industries
Ltd. 2006 (11) SCC 129, the Supreme Court stated that provision
for imposition of duty or evasion thereof must be provided in terms
of the law. By reason of an executive order, a presumption cannot
be raised, neither can penalty be levied. The matter would have
been different, if the same was provided for, as has been sought to
be done now, by way of terms and conditions of licence or in terms
of the rules. By reason of an executive instruction, the provisions
of the law cannot be effaced.
36. The purpose of issuing executive directions or circulars is
primarily to provide guidelines which then must be read together
for the purpose of ascertaining the intendment thereof. Thus,
executive orders and circulars have to be interpreted and
construed in the backdrop of these stated principles and they
cannot be intended to achieve an object which is contra or even
different than the statutory law.
43
37. Now, we revert back to consider the circular dated
15thJanuary, 2008. Admittedly, the project in question was not
listed in EIA notification of 1994 and is listed under EIA
notification of 2006. It would not require EC under the EIA
notification of 2006 if it was not shown in EIA notification of 1994
and NOC was issued on or before 14th September, 2006. Here, we
are concerned with environmental protection with reference to
Municipal Solid Waste (Management and Handling) Rules, 2000
(for short ‘MSW Rules). These rules elaborately dealt with the
collection and disposal of municipal solid waste. None of the terms
and conditions of these rules were complied with by Respondent
No.4 till expiry of the NOC period of five years in 2010. The NOC
referred to in clause (ii) relates to the NOC being issued under the
provisions of the Environment (Protection) Act, 1986 read with
MSW Rules of 2000. The NOC issued by Respondent No.3 does not
state as to under what provision of law or under what statute the
NOC was being issued. In any case, this was the NOC for the
purpose of establishment of MSWM plant, which itself was not set
up till the expiry of the NOC period in 2010. Thus, the NOC was
rendered ineffective and infructuous.
38. Furthermore, we must see the intent of the circular which
has been clearly conveyed in clause (iii) of the circular dated 15th
January, 2008, though in a different context. Under that clause,
obtaining of EC irrespective of NOC would be necessary if the
project has not commenced and it was listed under both the
notifications of 1994 and 2006, but what is important is that the
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NOC should not be extended without asking the project proponent
to seek prior EC under the notification. The purpose and intent of
the circular dated 15th January, 2008, thus cannot be construed to
provide an exemption to the statutory notification of 2006 but is to
provide solutions in some given situations while ensuring that EC
is taken. The exception is relatable to only those projects where the
project has been commenced. That is why, the project activity
must relate to operation of the plant rather than commencing of
ancillary works (such as construction of staff quarters). Now we
must also examine the stand taken by Respondent No.3 for all
these years. Though the circular had been issued in the year 2008,
still the Board was of the firm view that Respondent No.4 need to
obtain EC from SEIAA. Even as late as on 5th March, 2012, the
Board wrote to Respondent No.4 that NOC had already lapsed and
in view of the notification of 2006, there was a compulsion for
seeking environmental approval for solid waste management
project and specifically stated that no report had been submitted
and the authorisation requested was specifically declined. Even on
11th July, 2012, similar stand was taken and the Board called for
rapid environmental impact and general environmental assessment
report to consider the request. Thus, as late as the end of 2012,
the Board was not willing to grant any authorisation or permission
to Respondent No.4 for operating the MSWM project in question. It
is also evident at that stage that the project had not been
completed and even its construction was not complete. The stand
45
taken by Respondent No.3, apparently was in consonance with
law.
39. For reasons best known to Respondent No.3, the situation
underwent a complete change and it took a somersault in its view.
What happened in December, 2012 was that, all of a sudden,
Respondents No.2 and 3 not only issued authorisation by
extending the NOC after it had already lapsed but even took the
view and accepted the recommendation of the SEAC and SEIAA
that Respondent No.4 was not required to take EC. It abruptly
issued the letter dated 19th December, 2012. There was nothing on
record before us as to what proceedings were taken by Respondent
No.3 to examine the technical aspects, environmental impact and
the various objections with regard to the site in question. The order
dated 19th December, 2012 was issued in the absence of any
proceedings or any proper application of mind. We must also
notice that Mr. J.S. Yadav, at the relevant time, was the Member
Secretary of Respondents No.3 as well as 2. We even called for
original files of Respondent No.3 and they also did not reflect any
better picture. Then, after the institution of the application, the
order dated 15th March, 2013 came to be issued. In the face of
above facts and the records and the law, we have no hesitation in
holding that Respondent No.4 was required to take EC from SEIAA,
being Category ‘B’ project before setting up and operating MSWM
plant. Respondent No.4 is not exempted from seeking that
clearance on the strength of circular dated 15th January, 2008.
46
In order to have independent assessment of the project, it
would be desirable that the Member Secretary of Respondent 3
should not be the Member Secretary of the SEIAA.
(D) Public Health, Environment and Discussion in General
40. We have already held that the site selection was in violation of
the established and known procedure. It was not in accordance
with the relevant rules. In fact, the site selection appears to be an
arbitrary decision based on no analysis, not in accordance with the
MSW Rules, 2000 and does not even appear to be in public
interest. The argument advanced on behalf of Respondent No.4
was that the educational institutions like Invertis University and
other institutions had come up during the operation of the NOC
issued in favour of Respondent No.4 for establishment and
operation of the plant in question. Furthermore, some land area
belonging to the Corporation had been unauthorisedly occupied by
the University. These submissions do not impress us at all,
primarily for the reason that right from 2005 till 2010-11, no work
had been executed in relation to the plant in question. In the
meanwhile, after obtaining sanction from the requisite authorities,
the Invertis University and other buildings had come up. There had
been rapid increase in the population density of the surrounding
villages and there were admittedly water bodies around the site in
question. It was expected of Respondent No.3 to seriously ponder
over the project, do a technical analysis and examine the impact of
the plant in question on the environment. Without performing their
47
basic duty in accordance with the rules, the site had been
approved, which approval we are unable to sustain.
41. The establishment and construction of the plant in question
appears to have been carried out in blatant violation of the orders
of the High Court and Respondent No.3. The High Court as well as
Respondent No.3 had categorically noticed that the NOC had
lapsed as on 2nd January, 2010 and the same was not renewed,
and therefore, no construction activity could be carried out. The
High Court, in its earlier orders had stated that even the trenching
ground from the site in question should be shifted to an
appropriate site. Therefore, the Tribunal cannot permit Respondent
No.4 to take advantage of its own wrong and claim equity on the
ground that it has spent some money in raising the plant in
question. The amount which was spent in 2006 and earlier on
construction of a drain had nothing to do with the MSWM project
in question. The activity on which money was spent is not related
to the MSWM project activity. In fact the tender itself was invited in
2008 and agreement with the executing agency was amended in
2011. For these reasons of serious consequences, we are of the
considered view that Respondents cannot be permitted to claim
benefit of their own wrong doings.
42. 12 members of the Executive Committee of the Municipal
Corporation, Bareilly, strongly opposed, in public interest relatable
to public health, the establishment of the MSWM plant in question
and insisted on shifting of its site. Even this serious opposition did
not bring any proper results and there was undue persistence
48
upon carrying out the project at the site in question. There is a
complete lack of application of mind while dealing with the
application for issuance of authorisation as well as considering
Form I and the SEAC’s recommendations by Respondents No.2
and 3. Without regard to any proper reasoning and analysis, the
decision taken by Respondent No.3 for all these years, was
suddenly altered. This certainly contains an element of
arbitrariness as the relevant considerations were overlooked while
irrelevant matters were taken into consideration while taking a
final decision in this regard.
(E) Sustainable Development
43. In Susetha v. State of Tamil Nadu AIR 2006 SC 2893, the
Supreme Court observed that the doctrine of sustainable
development is not an empty slogan. It is required to be
implemented taking the pragmatic view and not on ipse dixit of the
Court. Following the same principle, it cannot more so applied on
an administrative authority or a Corporation vested with the
statutory obligation of providing environmental protection to the
residents under its jurisdiction. Sustainable development means
that the richness of the earth’s bio-diversity would be conserved for
future generations by greatly slowing or if possible halting
extinctions, habitat and ecosystem destruction, and also by not
risking significant alterations of the global environment that might
– by an increase in sea level or changing rainfall and vegetation
patterns or increasing ultraviolet radiation – alter the opportunities
available for future generations. Sustainable development has been
49
defined in many ways but the most frequently quoted definition is
from the Brundtland Report which states as follows:
“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:
The concept of needs, in particular the essential needs of the world’s poor, to which overriding priority should be given; and
The idea of limitations imposed by the state of technology and social organisation on the environment’s ability to meet present and future needs.”
44. The concept of sustainable development is rooted in this sort
of systems thinking. It helps us to understand ourselves and our
world. The problems we face are complex and serious – and we
can’t address them in the same way we created them.
45. While applying the concept of sustainable development, one
has to keep in mind the “principle of proportionality” based on the
concept of balance. It is an exercise in which courts or tribunals
have to balance the priorities of development on the one hand and
environmental protection on the other. So sustainable development
should also mean the type or extent of development that can take
place and which can be sustained by nature/ecology with or
without mitigation. In these matters, the required standard now is
that the risk of harm to the environment or to human health is to
be decided in public interest, according to a ‘reasonable person’s
test. (Refer Research Foundation for Science and Technology and
Natural Resource Policy v. Union of India (2007) 9 SCR 906;
Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664;
Chairman Barton: The Status of the Precautionary Principle in
50
Australia (Vol.22) (1998) (Harv. Envtt. Law Review, p. 509 at p.549-
A) as in A.P. Pollution Control Board v. Prof. M.V. Nayuder (1999) 2
SCC 718; and M.C. Mehta v. Union of India, AIR 2004 SC 4016. At
this stage, we may usefully refer to a very recent judgment of the
Supreme Court in the case of G. Sundarrjan v. Union of India &
Ors. Civil Appeal No. 4440 of 2013 (Arising out of S.L.P. (C) No.
27335 of 2012), Civil Appeal No. 4441 of 2013 (Arising out of S.L.P.
(C) No. 27813 of 2012), Civil Appeal No. 4442 of 2013 (Arising out
of S.L.P. (C) No. 29121 of 2012) and Civil Appeal No. 4443 of 2003
(Arising out of S.L.P. (C) No. 32013 of 2012) decided on 6th May,
2013 The Court, while referring to the principles of balance inbuilt
in the concept of sustainable development, elaborated the
principles as follows:
“228. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society. But, a pregnant one, the present case really does not fall within the four corners of that principle. It is not a case of the land oustees. It is not a case of "some inconvenience". It is not comparable to the loss caused to property. I have already emphasized upon the concept of living with the borrowed time of the future generation which essentially means not to ignore the inter-generational interests. Needless to emphasize, the dire need of the present society has to be treated with urgency, but, the said urgency
51
cannot be conferred with absolute supremacy over life. Ouster from land or deprivation of some benefit of different nature relatively would come within the compartment of smaller public interest or certain inconveniences. But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is taken and there is constant vigil, life of "some" can be in danger. That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution.”
46. In view of the above stated principles, which have been
applied by the courts and tribunals consistently, let us examine
the present case. Even when the hearing of this case had started, it
was not certain whether the construction of the plant had been
completed and if it was operational or not. A few maps and
photographs have been placed before us to show that within a
short distance – even less than 500 metres – the Invertis
University, hostels of students and other buildings, besides
populated villages and water bodies are located, certainly, the
plant in question is not the state-of-the-art one. From the
photographs that have been placed on record, it is evident that a
major part of this plant is open air and the basin pits have also not
been prepared as per the Schedule to the MSW Rules. The
structure itself is not of the kind which is incapable of being
shifted to another place.
47. Moreover, It is bound to have hazardous effects on the health
of the residents of the University/villages, some of them being
adjacent to the site in question. The site in which the plant is
52
located, is bound to cause pollution of ground water, which is
relatively at a higher level, by leaches. This is inevitable especially
in the rainy season. The municipal solid waste, which has been
dumped in the open area at the site without any laying of
impermeable membrane lining. Therefore, the contaminated water
is bound to seep into the underground water and even affect the
adjoining water bodies apart from affecting irrigation water. Even
the dumping sites have not been prepared in accordance with the
rules. The foul smell arising from the dumping at the site is bound
to pollute the air quality of the area. This bad smell is bound to
affect the health of the residents in the vicinity of the site and
because of pollution; they would be exposed to diseases like
asthma, emphysema and even cancer. Thus, the adverse effects of
permitting the plant to carry on its activities at the site in question
are bound to cause irretrievable damage to public health and
environment. The authorities concerned were requested by
different organisations, including the Executive Committee
members of the Corporation, the residents of the villages,
representatives of the University, Air Force and even other
volunteers to shift the site. These protests had taken place even
when there was no construction existing at the site. For reasons
best known alone to the authorities, and in any case none are
reflected from the records before us, the site in question was
persisted with in a most unscientific and arbitrary manner. Thus
when we apply the principle of balance between the public health
and the development and functioning of this project, the answer
53
necessarily has to tilt against the continuation of this plant at the
site in question.
48. The Corporation, being a public body, is bound by the
principles of public accountability and performance of public
duties in accordance with the law of the land. In our considered
opinion, the Nagar Nigam, Bareilly, Respondent No.4, has failed to
discharge its duties in accordance with the law. Environmental
impact, convenience of the residents and ecological impacts are the
relevant considerations and all such considerations, in the facts of
the case, were weighed against Respondent No.4. The larger public
interest must prevail over the narrow end of collection and
composting of municipal waste at the site in question.
Scientifically, it is not even a comprehensive plant which would
help in achieving the objective of collection and disposal of
municipal solid waste. Admittedly, neither the plant is site specific
nor does it have incinerators to ensure proper treatment and
volume reduction and disposal of the municipal waste. It only has
a system for bringing the municipal waste at the site for
segregation and dumping for composting. Thus, shifting of the
plant from the present site at this juncture even would, in no way,
tilt the balance against the concept of sustainable development as
interests of the citizens who have the Constitutional right to clean
environment must prevail over such arbitrary action of the
Corporation. Salus populi suprema lex. While applying the principle
of balance as a facet of sustainable development, with reference to
the facts of the present case, we have to keep in mind the
54
precautionary principle as well. It is better to take precaution today
than to suffer the consequences tomorrow. It is the future of
thousands of students and residents of the villages which is at
stake. There is not even a plausible explanation, much less a
definite reason, for Respondent No.4 to show why they could not
shift the plant to one of the earmarked sites in the Bareilly Master
Plan-2021 keeping in view the MSW Rules, 2000. To us, the public
health and future of the coming generations certainly weighs
against permitting the MSWM plant to continue at the site in
question. We have also examined this case from the view point of
economic viability of shifting the unit. In light of the above stated
facts and having examined various technical aspects of this case,
we are of the considered view that the physical shifting of the plant
to another appropriate and approved site would not only be
technically, economically and environmentally viable but also in
the larger interest of all stakeholders including the Corporation
itself.
49. Therefore, we order and direct –
(a) immediate closure of the municipal solid waste management
plant at Razau Paraspur, Bareilly;
(b) by a permanent prohibitory injunction, restraining
Respondent No.4 from dumping any municipal waste at the
site in question;
55
(c) by a mandatory injunction, Respondent No.4 to remove all
the municipal waste dumped at the site within four weeks
from today;
(d) the MSWM plant at Razau Paraspur, Bareilly, to be positively
shifted to any appropriate site within the territorial area of
the municipality earmarked in the Master Plan-2021 of
Bareilly, for that purpose in consonance with MSW Rules,
2000. This shall also be subject to Respondent No.4
obtaining consent of Respondent No.3 as well as obtaining
EC from the appropriate authority and in accordance with
law.
(e) The MoEF to ensure that the Member Secretary or any other
officer of the State Board should not be a Member in the
SEIAA, in order to facilitate independent assessment of the
projects at the SEIAA level.
(f) Till the above is carried out, Respondent No. 4 may continue
to dump Municipal Solid Waste at the existing Solid Waste
dumping grounds other than the site in question for which
Respondent No. 3 should provide clear guidelines for site
preparation, dumping, compaction, soil layering, disinfectant
spray etc. forthwith.
(g) The site in question should be restored and developed as per
Master Plan 2021.
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50. The application is accordingly allowed in the above terms. We,
however, leave the parties to bear their own costs.
Hon’ble Mr. Justice Swatanter Kumar (Chairperson)
Hon’ble Mr. U.D. Salvi (Judicial Member)
Hon’ble Dr. D.K. Agrawal (Expert Member)
Hon’ble Dr. G.K. Pandey
(Expert Member)
Hon’ble Dr. R.C.Trivedi
(Expert Member) New Delhi July 18, 2013