Gujarat High Court
Parth Mahila Utkarsh Mandal (N.G.O) ... vs Sraddha Developers on 17 February, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
C/WPPIL/47/2012 CAV JUDGEMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 47 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ PARTH MAHILA UTKARSH MANDAL (N.G.O) THRO MAHAMANTRI....Applicant(s) Versus SRADDHA DEVELOPERS, & 10....Opponent(s) ================================================================ Appearance:
MR A A ZABUAWALA, ADVOCATE for the Applicant(s) No. 1 MS BHAKTI B GARASIA, ADVOCATE for the Applicant(s) No. 1 MR PK JANI, GOVT. PLEADER with MR VANDAN BAXI, AGP for the Opponent(s) No. 8 - 9 MR ANSHIN H DESAI, ADVOCATE for the Opponent(s) No. 7 MR CB UPADHYAYA, ADVOCATE for the Opponent(s) No. 1 MR MITUL K SHELAT, ADVOCATE for the Opponent(s) No. 10 MR SN SHELAT, SR.ADVOCATE with MS VD NANAVATI, ADVOCATE for the Opponent(s) No. 3 MR SN SOPARKAR, SR.ADVOCATE with MS MANISHA LAVKUMAR, ADVOCATE for the Opponent(s) No. 11 NOTICE SERVED for the Opponent(s) No. 4 - 6 NOTICE UNSERVED for the Opponent(s) No. 2 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.Page 1 of 89
C/WPPIL/47/2012 CAV JUDGEMENT
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/2/2014
CAV JUDGEMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. By this writ application in the nature of a Public Interest Litigation, the petitioner, a Non Government Organization, has brought to our notice that the respondent no.4, Ahmedabad Municipal Corporation and the respondent no.6, Director (Environment) and Additional Secretary, Forest & Environment Department, State of Gujarat, has granted permission to the respondent nos.1 and 2 to construct residential flats in the name of Paradise Park situated at T.P.No.73, Final Plot No.38/2/1 and 38/2/2, Ward Ramol-Hathijan, Ta: Dascroi, Mouje Vinzol, just adjacent to the Hazardous Waste Landfill Site.
According to the petitioner, the same is in violation of the guidelines framed by the Central Pollution Control Board for setting-up of the operating facility (Hazardous Waste Management).
2. The case made-out by the petitioner may be summarized as under :
2.1 According to the petitioner, the respondent no.1 is a partnership firm engaged in the business of construction and development of land and the respondent no.2 is the Power of Attorney holder of the partners of the respondent no.1 firm.
According to the petitioner, the respondent no.1 and 2 floated a scheme of residential flats in the name of Paradise Park Page 2 of 89 C/WPPIL/47/2012 CAV JUDGEMENT scheme situated at the address referred to above and the respondent nos.3 and 4 i.e. the Ahmedabad Municipal Commissioner and the Ahmedabad Municipal Corporation issued a letter of commencement (Raja Chitthi) to start with the construction, despite knowing fully well that the scheme of residential flats is very much adjoining the Hazardous Waste Landfill Site which is being maintained by the respondent no.10 Green Environment Service Cooperative Society Ltd.
2.2 It is the case of the petitioner that having learnt about the same a letter was addressed to the Ahmedabad Municipal Corporation to take the permission in review in the public interest. According to the petitioner, the site where the construction has been put-up by the respondent nos.1 and 2 is reserved by the Ahmedabad Municipal Corporation for the GIDC Industrial Hazardous Solid Waste Disposal and the said site was developed in the year 2003 by the respondent no.10 the Green Environment Service Cooperative Society Ltd.
2.3 According to the petitioner, the concerned authorities granted permission for construction of the residential flats, without keeping in mind the interest of the general public at large, more particularly the health of the nearby inhabitants, and therefore, could not have granted such permission which is in direct violation of the guidelines framed by the Central Pollution Control Board so far as the Landfill Site is concerned.
In such circumstances referred to above, the petitioner has prayed for the following reliefs:-
"12.Page 3 of 89
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a) this Hon. High Court may be pleased to admit the
present petition and call for the rules and
regulations of the respondent no.6 by not
permitting the residential construction within the radius of 500 meters of Hazardous Waste Landfill Site.
b) Pending disposal of this petition, the respondent no.1 & 2 be restrained to construct, develop, allot and use the Paradise Park Scheme situated within the radius of 500 meters of Hazardous Waste Land;
c) this Hon. Court may call for the reasons that inspite of specific circulars how and why permissions for construction and development of Paradise Park Scheme of the respondent no.1 & 2 is given by the respondent no.3 to 6
d) this Hon. Court may issue an appropriate Writ to the respondent no.3 to 6 to cancel the given permission for construction for Paradise Park for residence within 500 meters Radius of Hazardous Waste Land Fill Site, developed and constructed by the respondent no.1 & 2.
e) this Hon. Court may be pleased to direct the investigation against the respondent no.3 to 6 that why the permission of commencement (Raja Chitthi) are given to the respondent no.1 & 2 though violating the circulars/notification/laws.Page 4 of 89
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f) this Hon. Court may be pleased to pass further
orders in the ends of justice as deemed fit and proper in the interest of justice and truth in favour of the petitioner."
3. Stance of the respondent nos.1 and 2 :
3.1 The petition filed by the NGO is ex-facie malafide and targeted only against the project undertaken by the respondents, namely, the Paradise Park. The petitioner has intentionally not raised any grievance against any other developments which are already in existence and are within the periphery of 500 meters of the Hazardous Waste Landfill Site situated at Vinzol, Ahmedabad and Hazardous Waste Landfill situated at Odhav, Ahmedabad.
3.2 There are EWS Housing Colonies of the AUDA, Dascroi Mamlatdar's Office, Old Residential colonies (since 1975) like Vinobabhavenagar with approximately 3000 houses near the Vatva TSDF, Adinathnagar with approximately 7000 houses near the Odhav TSDF. There are many residential and commercial projects including the Paryavaran Mandir which is a huge conference hall constructed on the Waste Dump Site at Odhav. The petition is not a genuine PIL filed for the benefit of the public, but the same has been filed at the instance of few business rivals.
3.3 The petition deserves to be rejected on the ground of delay and laches. The project had commenced way back in May, 2010 and as on today practically the construction is Page 5 of 89 C/WPPIL/47/2012 CAV JUDGEMENT completed and various persons have booked flats in the project by depositing the earnest money. The agreements to sell are also executed with various buyers.
3.4 Despite the knowledge of commencement of the project, the petitioner kept quiet for all these period of time and after the completion of the construction, the petitioner has raised this issue. The Government prescribed the criteria/guidelines for the Hazardous Waste Land Fills somewhere in the year 1998-99 for the owners and operators of the secured land filling facility. The criteria provides a detailed methodology for the selection of the site. It provides that the Landfill Sites should be at least 500 meters away from a notified habitat area or a highway. A zone of 500 meters around a landfill boundary shall be declared as the no-development buffer zone after the landfill location is finalized. It also provides that the Hazardous Waste Landfills should be preferably located in the areas of low population density.
3.5 According to the respondents the selection of the site was done without considering in mind the applicable norms and in violation of the duly approved Zoning and development plan under the Town Planning Act whereunder the area in which the waste dumping site falls, is earmarked as a residential zone since 1987.
3.6 According to the respondents, after finalizing the site, the authority concerned ought to have declared 500 meters area in the periphery of such site as a buffer zone with a clear public notice that no development shall be permitted in the buffer zone area. However, no such public notice was issued Page 6 of 89 C/WPPIL/47/2012 CAV JUDGEMENT by the authorities concerned and thereby gave an impression that the area was declared as a residential zone.
3.7 If the respondents are restrained from proceeding ahead with the project at this stage, more particularly, when it has completed the construction and has executed various agreement to sell in favour of the buyers of the flats, the same would amount to depriving them of the property without complying with the procedure established by law and would be in violation of the Article 300(A) of the Constitution of India.
3.8 According to the respondents, the Ahmedabad Municipal Corporation has directed them to obtain a No Objection Certificate from the competent authority under the Environment Law failing which the Corporation would not grant the Building Use permission. As a result, the Corporation has not granted the building use permission till date, and consequently, the respondents have not been able to hand-
over the possession of the flats to the innocent buyers who have been put in a precarious situation.
3.9 According to the respondents there being no merit in this petition, the same deserves to be rejected.
4. Stance of the respondent no.6, Director (Environment & Additional Secretary, Forest & Environment Department), Government of Gujarat.
An affidavit-in-reply has been filed on behalf of the respondent no.6 duly sworn by the Director (Environment) Forest & Environment Department, Government of Gujarat, Page 7 of 89 C/WPPIL/47/2012 CAV JUDGEMENT inter alia stating as under :
"4.1 That the Ministry of Environment and Forests had earlier notified the Hazardous Waste (M&H) Rules in 1989, which were subsequently re-notified on 24/09/2008. The Schedule-VII under rule 23 of the said Rules authorizes Central Pollution Control Board to prepare guidelines for prevention/reduction/ minimization of the generation and handling of hazardous Waste and the same is mentioned against its corresponding duties.
4.2 That the directions under Section 5 of the Environment (Protection) Act, 1986 was issued by the Principal Secretary, Forests & Environment Department to Ahmedabad Municipal Corporation on 8/12/2010 by circulating the guidelines issued by the Central Pollution Control Board and to ensure that all provisions of the said guidelines are complied with and a buffer zone as mentioned in the guidelines is kept, while granting any permission near the Treatment, Storage and Disposal Facility (TSDF) site.
4.3 That as per the said guidelines issued by the Central Pollution Control Board, the habitation has to be at a distance of at least 500 meters from the landfill site. It has been categorically stated in the said guidelines that "A zone of 500 meters around a landfill boundary should be declared a no- development buffer zone after the landfill location is finalized".
Here in the present case, the site of the respondent no.1 and 2 is within the prescribed limitation area of 500 meters.
4.4 That the Forest & Environment Department and the Page 8 of 89 C/WPPIL/47/2012 CAV JUDGEMENT respondent no.6 have not given any permission to the respondent nos.1 and 2 to construct residential cum commercial accommodation in the name of Paradise Park Scheme.
4.5 That the Forests & Environment Department, subsequent to the letter dated 21st Jan.,2011, had written to the Ahmedabad Municipal Corporation on 9/2/2011, clarifying its stand and asking the respondent authority to ensure that no violation of the CPCB guidelines were done.
4.6 That the Ahmedabad Municipal Corporation had asked the respondent nos.1 and 2 to obtain NOC from the Forest & Environment Department for the construction. However, there is no provision in the Environment Protection Act, 1986 or any other law to grant permission for the construction of building by the Forests and Environment Department. That for the reasons mentioned herein-before no permission for any such construction in violation of CPCB guidelines can be granted by any authority.
4.7 That the facility operated by the respondent no.10 has been notified in the year 1996 and the respondent nos.1 and 2 were granted development permission by the respondent Corporation in the year 2010. That the CPCB issued the said guidelines in February, 2001. Thus, looking to the fact that the landfill site has been notified in the year 1996, the respondent nos.1 and 2 cannot be granted permission for residential or commercial building construction. The respondent nos.1 and 2 were very much aware about the fact that the landfill site is just at the distance of less than 500 meters from the site of Page 9 of 89 C/WPPIL/47/2012 CAV JUDGEMENT the respondent no.10 and in spite of such knowledge went ahead with the project for development and sought permission from the respondent-Corporation.
4.8 That as per the said guidelines, there should be a no- development buffer zone upto 500 meters around the landfill site boundary as per CPCB guidelines and CPCB guidelines are required to be followed in strict sense. That the urban bodies are required to follow the CPCB guidelines in strict sense and the same cannot be violated.
4.9 That if such violations of the environment laws or rules or guidelines are allowed, then it would affect the environmental conservation adversely besides causing danger to human health."
5. Stance of the Respondent No.10, The Green Environment Service Co-operative Society.
On behalf of the respondent no.10, an affidavit-in-reply has been filed duly sworn by the General Manager, Operations of the Society, inter alia, stating as under:
"5.1 The Green Environment Society was constituted pursuant to the directions contained in the Judgment in the matter of Pravinbhai Jashbhai Patel and another v. State of Gujarat and others, (1995)2 GLR 1210. The Society was constituted with the joint initiative of the State Government, Central Government and the unit holder for the purpose of establishment and management of common facilities for the collection, treatment and safe disposal of the effluent of the Page 10 of 89 C/WPPIL/47/2012 CAV JUDGEMENT units.
5.2 The respondent is operating the Waste Landfill Sites at the below mentioned survey numbers :
i) Survey No.75, 76 : SLF -1
ii) Survey No.75, 76 : SLF -2
iii) Survey No.75, 76 : Expansion of SLF-1 and SLF-2
iv) Survey No.89, 90, 91 : SLF-3
5.3 In a Public Interest Litigation being Special Civil
Application No.770 of 1995, this Hon'ble Court considered the issue regarding pollution of Kharicut Canal. The Ahmedabad Municipal Corporation was a party Respondent in the said proceedings. In the said proceedings, this Hon'ble Court took the assistance of three Committees.-
i) Pandya Committee
ii) Nema Committee
iii) Bhanujan Committee
The reports of the above referred committees were filed in the court and have been extensively referred to and relied upon by the Court in the judgment delivered by it. The Pandya Committee, a Committee of three Advocates, headed by Mr. Mayur Pandya was constituted on 16/02/1995. The Pandya Committee was required to ascertain facts with regard to the extent of pollution in the Industrial Estates of Vatva, Odhav, Naroda and Narol situated in Ahmedabad. The Nema Committee consisting of Mr.P. Nema of Neeri, as its Chairman, Mr.T.N. Ramprasad of Ahmedabad Municipal Corporation, Mr.K.D.Rathod, Environmental Engineer of Gujarat Page 11 of 89 C/WPPIL/47/2012 CAV JUDGEMENT PollutionControl Board and Mr.P.P.Oza, Professor of Environmental Engineering in the L.D.Engineering College at Ahmedabad, and Mr.M.D.Pandya. This committee was to examine the representations of any of the industries which were adversely affected by the Order of the Court and was directed to carry out examination of the effluents of all the industrial units at different points of time. Shri V.K. Bhanujan, Additional Chief Secretary, Industries and Mines Department was entrusted to prepare a comprehensive report about the pollution problem and to indicate a workable solution. The report was submitted in which reference has been made to various publications from India and abroad and after consulting technical officer of the Gujarat Pollution Control Board and Ahmedabad Municipal Corporation. The Bhanujan report deals with the problem of pollution and then sets out the earlier attempts which were made to contain it. It deals with the topics like collection, treatment and disposal at Naroda, Odhav and Vatva as well as monitoring and enforcement of the laws.
5.4 During the course of the proceedings, and in deference to the issue involved in the said matter the Gujarat Pollution Control Board entrusted the National Productivity Council with the task of carrying out "Environmental Impact Studies for Identification of Hazardous Waste Disposal Sites in Odhav, Naroda and Vatva Industrial Estates of Ahmedabad District"
and to investigate the old dump sites in these industrial estates.
5.5 That the National Productivity Council submitted its report dated 10/4/1995. In terms of the aforesaid report, the Page 12 of 89 C/WPPIL/47/2012 CAV JUDGEMENT three sites referred to herein before were identified as most suitable for development of hazardous waste disposal sites in Ahmedabad region. For the purposes of identification of the sites, the Council undertook a detailed procedure. It determined an evaluation criterion for determination of the landfill sites. After following the selection procedure process, in so far as the Answering Respondent is concerned, the lands at Vinzol were identified as most suitable for the purpose of development of the facility. The report specifically records that the sites identified by the Council were not having any visible adverse impact on human population. In fact it was specifically recorded that the utilization of the sites, part of which were waste lands, would have a positive impact on human population.
The site near Vinzol village (Site No.3) in Vatva was identified as most suitable due to the following reasons.
> Soil is comparatively impermeable.
> It is a waste land.
> Drainage possibilities surface water and leach ate
are very good.
> Geotechnical Lineaments like faults, etc. are absent.
> Not ecological sensitive area.
> No possible impact on the population at downwind."
5.6 The Environmental Impact Report submitted by the National Productivity Council was accepted by the Gujarat Pollution Control Board and was placed for consideration in the above referred proceedings. The Hon'ble High Court considered the said report and accepted the recommendations Page 13 of 89 C/WPPIL/47/2012 CAV JUDGEMENT made in the report and the recommendations were made part of the directions contained in the judgment of the Court. The Hon'ble Court issued the following operative directions.
"C Order are further issued to the following effect:
(i) The respondents will ensure that all unauthorized connection with the Municipal drains from the industrial units are disconnected forthwith.
(ii) Direction is issued to the State of Gujarat to implement the reports of the National Productivity Council regarding the disposal of the solid waste, and the recommendations of the said council shall be carried out within a period of six months from today and in the meantime, the industrial units are restrained from disposing any solid waste in open plots of land which have been demarcated for such purpose by the G.P.C.B. The solid wastes should be retained within the factory premises and be disposed as per the direction to issued by the State/G.P.C.B."
5.7 In compliance of the above directions, the State Government issued the notification declaring the lands in question as notified lands for the purpose of waste disposal site. That the above referred lands have consequently been notified and put to use as landfill sites pursuant to land in accordance with the notification dated 14/12/1995 and the provisions contained in the Hazardous Wastes (Management and Handling) Rules,1989.
Page 14 of 89C/WPPIL/47/2012 CAV JUDGEMENT 5.8 That at the relevant point of time the Hazardous Waste (Management and Handling) Rules, 1989 provides as under:
"Rule 5. Grant of authorization of handling hazardous wastes.
(1) Hazardous Wastes shall be collected, treated, stored, and disposed of only in such facilities as may be authorized for this purpose.
(2) Every occupier generating hazardous wastes and having a facility for collection, reception, treatment, transport storage and disposal of such wastes shall make an application in Form 1 to the State Pollution Control Board for the grant of authorization for any of the above activities.
Provided that the occupier not having a facility for the collection, reception, treatment, transport, storage and disposal of hazardous wastes shall make an application in Form 1 for the grant of authorization within a period of six months from the date of the commencement of the rules.
(3) Any person who intends to be an operator of a facility for the collection, reception, treatment, transport, storage and disposal of hazardous wastes, shall make an application in Form 1 to the State Pollution Control Board for the grant of authorization for any of the above activities.
Page 15 of 89C/WPPIL/47/2012 CAV JUDGEMENT Provided that the operator engaged in the business of the collection, reception, treatment, transport, storage and disposal of hazardous wastes shall make an application to the State Pollution Control Board in Form 1 for the grant of authorization within a period of six months from the date of commencement of these rules.
(4) The State Pollution Control Board shall not issue an authorization unless it is satisfied that the operator of a facility or an occupier, as the case may be, possesses appropriate facilities, technical capabilities and equipment to handle hazardous wastes safely.
(5) The authorization to operate a facility shall be issued in Form 2 and shall be subject to conditions laid down therein.
(6) (i) An authorization granted under this rule shall unless sooner suspended or cancelled, be in force for a period of two years from the date of issue or from the date of renewal.
(ii) An application for the renewal of an authorization shall be made in Form 1, before its expiry.
(7) The State Pollution Control Board, after giving reasonable opportunity of being heard to the applicant, refused to grant any authorization.
5.9 That thereafter on the notified lands the respondent developed the facility for storage of hazardous wastes in Page 16 of 89 C/WPPIL/47/2012 CAV JUDGEMENT accordance with the report of the National Productivity Council. That in accordance with Rule-5 of the Hazardous Wastes (Management and Handling) Rules, 1989 the Company made an application to the State Pollution Control Board for the grant of authorization. The Answering Respondent has received Consent and Authorization for Survey no.72, 75, 76, 89, 90 and 91 and is operating the storage facility to the complete knowledge of all concerned including the Ahmedabad Municipal Corporation.
5.10 The directions above referred which have been issued are within the knowledge of the Ahmedabad Municipal Corporation, which was a party Respondent in the above referred proceedings and was actively associate at each and every stage of the proceedings including the identification of the sites in question. Furthermore, the Ahmedabad Municipal Corporation has not challenged the above judgment or the notification issued in compliance of the above judgment. It would be impermissible for the Corporation to now suggest that in complying with the directions issued by this Hon'ble Court, the State Government and the Answering Respondent had acted in breach of any provisions contained in the Bombay Provincial Municipal Corporations Act, 1948 the Gujarat Town Planning and Urban Development Act, 1979 and the General Development Control Regulations.
5.11 That the Hazardous Wastes (Management and Handling) Rules, 1989 is a self-contained code containing the following :-
i) Responsibility of the occupier for handling of wastes
ii) Grant of authorization for handling of hazardous wastes.Page 17 of 89
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iii) Power to suspend or cancel an authorization
iv) Packaging, labeling and transport of hazardous wastes.
v) Inventory of disposal sites
vi) Records and returns
vii) Accident reporting and follow-up.
viii) Import of hazardous wastes
ix) Appeal
x) Schedule -dealing with the categories of hazardous
wastes.
xi) Form 1, Form 2, Form 3, Form 4, Form 5, Form 6, Form 7
5.12 As per the Hazardous Wastes (Management and
Handling) Rules, 1989 the only authorization required by every occupier generating hazardous wastes and having a facility for collection, reception, treatment, transport, storage and disposal of such wastes is that of the State Pollution Control Board. That Hazardous Wastes (Management and Handling) Rules,1989 sets out a self contained code thereby impliedly excluding the applicability of the general law procedure.
5.13 The Bombay Provincial Municipal Corporation Act, 1949 or the Gujarat Town Planning and Urban Development Act, 1979 does not regulate the identification, establishment, operation and maintenance of solid waste disposal sites. That at all material times, the office bearers of the Answering Respondent had approached the Municipal Commissioner and inquired about the requirement of any further permission in addition to the authorization granted by the Gujarat pollution Control Board. That it has been the consistent stand of the Ahmedabad Municipal Corporation that for the purposes of the storage facility being operated by the Answering Respondent Page 18 of 89 C/WPPIL/47/2012 CAV JUDGEMENT no permission is required to be obtained from the Ahmedabad Municipal Corporation. It is material to note that the sewage plant of the Ahmedabad Municipal Corporation is abutting the wall of the site operated by the Answering Respondent.
5.14 A notice dated 18/2/2012 came to be issued by the Ahmedabad Municipal Corporation alleging that the additional height of 1.00 meters on the existing compound wall was without permission. The Answering Respondent by letter dated 21/2/2012 clarified that the secured landfill site was as per the design of the Central Pollution Control Board guidelines and in furtherance of the notification issued by the Forest and Environment Department of the Government of Gujarat and pursuant to the authorization granted by the Gujarat Pollution Control Board.
5.15 That some objections were received by the Ahmedabad Municipal Corporation in respect of the site being maintained by the Answering Respondent. That vide letter dated 13/3/2012 the Ahmedabad Municipal Corporation inquired about the guidelines in respect of the design of the landfill sites and its operation. The Answering Respondent vide its letter dated 28/3/2012 provided all the information as sought for and also conveyed the fact that the said information had been provided to the Ahmedabad Municipal Corporation Officers who had visited the sites as well as in the previous letter dated 21/2/2012.
5.16 Thereafter the Ahmedabad Municipal Corporation did not seek any further clarification in the matter evidencing by such conduct that the officers were satisfied with the information Page 19 of 89 C/WPPIL/47/2012 CAV JUDGEMENT furnished by the Answering Respondent.
5.17 That at no point of time, prior to the affidavit filed in the present proceedings, the Ahmedabad Municipal Corporation has questioned the existence and operation of the landfill site on the subject lands. In fact it has been established by various correspondences addressed by the Ahmedabad Municipal Corporation and it has also believed that for the purpose of operating the facility the authorization has to be obtained from the State Pollution Control Board and no permission is required to be obtained from the Ahmedabad Municipal Corporation.
5.18 Since inception till date an approximate amount of 12,10,113.95 M.Tons of solid waste has been treated and stored in the sites by the Answering Respondent. The last site is on the verge of closure and the tender has already been issued for the purpose of undertaking the process of capping of he site.
5.19 The waste landfill sites in question have been established by the Answering Respondent in complete compliance with the Hazardous Wastes (Management & Handling) Rules, 1989 and the directions of this Court in SCA No.770/1995. The relevant authorizations for the operation of the waste landfill sites have been obtained from the State Pollution Control Board. The identification and development of the waste disposal sites in question was pursuant to the proceedings of this Court and was within the knowledge of Ahmedabad Municipal Corporation. There is no requirement for the Answering Respondent to obtain any permission from the Ahmedabad Municipal Corporation for the said purpose."
Page 20 of 89C/WPPIL/47/2012 CAV JUDGEMENT
6. Stance of the Respondent no.4, Ahmedabad Municipal Corporation :
On behalf of the Ahmedabad Municipal Corporation, affidavit-in-reply has been filed duly sworn by its Deputy Municipal Commissioner, inter alia stating as under :
"6.1 That subsequent to the directions issued under Section 5 of the E.P.Act, 1986 the Director (Environment) & Additional Secretary addressed a letter to the Municipal Commissioner, the content of which enjoins the Municipal Commissioner to consider the corrective measures proposed by Shraddha Developers by its communication dated 10/1/2011 which was annexed with the letter dated 21/1/2011. The Government in its Environment Department was of the view that corrective measures can balance the anxiety shown against the permission for construction granted in favour of Shraddha Developers.
6.2 The Ahmedabad Municipal Corporation granted commencement permission by communication dated 21/6/2011 and the said permission was granted subject to the contents of the letter dated 21/1/2011. In five hundred meters the Ahmedabd Municipal Corporation has also granted permission in favour of Executive Engineer Construction, GETCO Division for construction of Sub-Station in T.P. No.73."
7. One additional affidavit-in-reply has been filed on behalf of the Ahmedabad Municipal Corporation duly sworn by the Deputy Town Planning Officer, inter alia stating as under:-
Page 21 of 89C/WPPIL/47/2012 CAV JUDGEMENT "7.1 The General Development Control Regulation framed by the State Government is applicable to areas within the Ahmedabad Municipal Corporation and the areas which were part of Urban Development Authority.
7.2 That Section 2(viii) of the Gujarat Town Planning & Urban Development Act, 1976 provides for definition of "Development". The development permission is necessary for land-fill site for dumping of solid waste as carrying out of any operation in or over or under the land is part of development activity. Regulation 2.9 provides for the definition of hazardous building.
7.4 Regulation 3.1 provides for application for development permission. The Storage of solid waste by dumping them would be hazardous activity. Regulation 32 provides for use zone table. In a residential zone obnoxious and hazardous use of any site is not permitted. Under Regulation 32(5)(6) development may be permitted by the competent authority for dumping of solid industrial waste subject to NOC and conditions laid down by the Pollution Control Board in General Industrial Zone and/or Special Industrial Zone or obnoxious and hazardous zone, as the case may be. Even in agricultural zone also permission of competent authority is required for dumping of solid industrial waste.
7.5 In view of the above, the respondent no.1 is required to seek sanction under the provisions of the Town Planning and Bombay Provincial Municipal Corporation Act."
Page 22 of 89C/WPPIL/47/2012 CAV JUDGEMENT
8. Stance of the Respondent no.11, Ahmedabad Builders Association:-
On behalf of the Respondent no.11, an affidavit-in-reply has been filed duly sworn by the Member of the Managing Committee of the Association, inter alia, stating as under:-
"8.1 The Ministry of Environment & Forest had notified the Hazardous Wastes (Management and Handling) Rules, 1989. Under the said rules, i.e. Rule 2(15), "hazardous waste site"
has been defined to mean a storage and disposal of hazardous wastes, which have been duly approved by the competent authority.
8.2 Rule-4 casts responsibility on the occupier and operator of a facility for handling of the wastes. Rule 4(1) reads as under :
"4(1) The occupier and the operator of a facility shall be responsible for proper collection, reception, treatment, storage and disposal of hazardous wastes listed in Schedule 1, 2 and 3."
8.3 Rule 4A defines the duties of the occupier and the operator of a facility. Rule 8 which prescribes the rules for disposal sites, reads as under :
"8. DISPOSAL SITES.
(1) The occupier or operator of a facility or any association of occupiers shall be jointly and severally responsible for indentifying sites for Page 23 of 89 C/WPPIL/47/2012 CAV JUDGEMENT establishing the facility for treatment, storage and disposal of hazardous wastes.
(2) The State Government, operator of a facility or any association of occupiers shall jointly and severally be responsible for, and identify sites for common facility for treatment, storage and disposal of hazardous wastes in the State.
(3) The operator of a facility, occupier of any association of occupiers shall undertake an environmental impact assessment (EIA) of the selected site (s) and shall submit the EIA report to the State Pollution Control Board or Committee.
(4) The State Pollution Control board or Committee shall on being satisfied with the EIA report, cause a public notice for conducting a public hearing as per the procedure contained in the Environment Impact Assessment Notification, 1994 published vide S.O. 60(E) dated the 27th January, 1994 as amended from time to time.
(5) The State Pollution Control board or Committee shall forward to the State Government or Union Territory Administration, as the case may be, the project report including EIA report and details of public hearing along with its recommendations within a period of 30 days from the last date of public hearing.Page 24 of 89
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(6) The State Government shall complete the
assessment within a period of thirty days from the date of receipt of the documents mentioned in sub-
rule (5) and convey the decision of its approval of site (s) or otherwise within 30 days thereafter to the concerned operator of the facility, occupier or any association of occupiers.
(7) After approval of the site or sites, the State Government shall acquire the site(s) or inform the occupier or any operator of facility, or any association of occupiers to acquire the site(s) for setting up the facility for treatment, storage and disposal of hazardous wastes. The State Government shall simultaneously notify such site
(s). The State Government shall also compile and publish periodically an inventory of such hazardous wastes disposal sites and facilties;
(8) Setting up of an on-site facility for treatment, storage and disposal of hazardous wastes for captive use shall be governed by the authorization procedure laid down in rule 5."
8.4 Pursuant to the rules of 1989, the Central Pollution Control Board issued guidelines for setting up of operating facility "hazardous wastes management" referred to as Document Series Hazwams/11/98-99; (hereinafter referred to as the Guidelines 98-99). The petitioner has relied upon the Criteria for Hazardous Waste Landfills prescribed under The Guidelines For Setting up of Operating Facility notified as Page 25 of 89 C/WPPIL/47/2012 CAV JUDGEMENT Document Series Hazwams/11/98-99; prescribed by the Central Pollution Control Board, more particularly, the locational criteria.
Guidelines framed by CPCB relating to Hazardous waste management; Hazwams/11/98-99 stipulates. Site selection as under :-
3. Site Selection Site selection procedures be so adopted so that the distance of the site is not too close to cause impact, too far as involve heavy transporting cost and risk. A thick impervious cushion between the bottom of landfill and the top of the ground water table, sufficiently big size to have 20 years future waste, good dispersion of air pollutants, public acceptability, safe distance from habitations, (present and future); are the points to be seen. Ranking has to be made by adopting Delphi techniques detailed in the guidelines by superimposing the rejection maps (GIS) technique, as given in CPCB publication on zoning atlas.
The Criteria For Hazardous Waste Landfills were framed by CPCB in the year 2001.
Criteria No 2.0, (e) recommends the location at which a TSDF (Disposal Site) may be put up. The same is reproduced herein below for easy reference :-
"2.0 LOCATIONAL CRITERIA Page 26 of 89 C/WPPIL/47/2012 CAV JUDGEMENT HW Landfills shall not be located within a certain distance of the following lakes, ponds, rivers, wetlands, flood plains, highways, habitation, critical habitat area, water supply wells, Airports, coastal zone. If it is absolutely essential to site a landfill within the restricted zone, then appropriate design measures are to be taken and prior permission from the SPCB/PCC should be obtained.
a. .... b. .... c. .... d. ..... e. Habitation: A landfill site shall be atleast 500 m from a
notified habituated area. A zone of 500 m around a landfill boundary should be declared a no-development buffer zone after the landfill location is finalized."
The said guidelines came to be prescribed in the year 98/99 and the criteria for Landfills in February, 2001.
The TSDFS at Vatva has been developed in the following manner :-
Sr. Particulars Survey Stage Capacity Period of No. No. Operation
1. SLF-1 76, 76 Phase:1 74287.04 April 1998 to 5 MT January 1999
2. SLF-2 75, 76 Phase:2 170004.3 February 1999 35 MT to October,2001
3. Expansion of 75, 76 Phase:3 128441.8 October 2001 to SLF-1 and 40 MT February, 2003 SLF-2
4. SLF-3 89,90, 91 Phase:4 850000 March 2003 MT Page 27 of 89 C/WPPIL/47/2012 CAV JUDGEMENT 8.5 Prior to the establishment of the TSDSF at Vatva, the Development plan under the Gujarat Town Planning Act came to be sanctioned in the year 1987. The entire area in dispute admeasuring 20 lac yards was reserved as a predominantly residential zone. The Revised Development Plan sanctioned in the year 1997 as well as the Revised Development Plan sanctioned in the year 2002 dated 18/5/2002 also notified the area in dispute as residential zone; R-I. 8.6 The Gujarat Development Control Regulations, hereinafter referred to as the GDCR, are statutory regulations framed under section 12 (2)(m) and 13(2)(c) of The Gujarat Town Planning And Urban Development Act, 1976. The GDCR applies to all developments in the Urban Development Area including the Ahmedabad Municipal Corporation areas as notified. Under the GDCR of 1987 as well as the GDCR of 2002, no hazardous activity can be permitted in a residential zone. The regulations clearly stipulate the types of development which may not be permitted in a residential zone, which includes residential zone-I and II. The same reads as under :
Sr. Zone Type of development which may not be No. permitted 01 02 03 1(a) Residential Zone Obnoxious and hazardous uses, steel stock
(a) Residential Zone-I yard, truck terminal, saw mill, timber mart, ice factory and cold storage, junk yard,
(b) Residential Zone-II non-obnoxious and non-hazardous industries, wholesale market, ware houses, storage of perishable and Page 28 of 89 C/WPPIL/47/2012 CAV JUDGEMENT inflammable goods hospital for infectious and contagious diseases, mental hospital, jail etc. In view of the clear stipulations under the GDCR, the Landfills site could never have been put up in a residential zone, occupied by thousands of habitants, under various schemes including housing schemes of the State Government.
As on date there exists the EWS Housing Colony of AUDA, The Daskroi Mamlatdars Office, Vinobabhave Nagar comprising of 3000 residential accommodations near Vatva TSDF, Adinath Nagar comprising of 7000 residential units, Pariyavaran Mandir on landfill site at Odhav. The AMC has recently granted permission to the Gujarat Energy Transmission Company for establishing a Sub-Station.
8.7 The Zoning Certificates issued by the Corporation also reflect that the land in dispute falls within the residential zone.
8.8 Gujarat Pollution Control Board has published its ACTION PLAN FOR VATVA TSDF Site. The same reads as under :-
ACTION PLAN FOR VATVA Sr. Activity Issue Action Implemen Time Financial No ting limit implicati Agency on & outlay WATER
4. Capacity It is TSDF Concerned 31/12/ TSDF observed authority TSDF 10 authority Upgradatio that TSDF may be may n is about to asked to approach Page 29 of 89 C/WPPIL/47/2012 CAV JUDGEMENT reach work out for the of Existing their the Ministry design remaining of TSDF capacity. life of Industry Therefore, existing for it is TSDF and Upgrada-
required identificatio tion of
to expand n of new TSDF
their site/ new under
design cell in various
capacity. existing schemes.
facility as
per
requirement
As stated by the Gujarat Pollution Control Board on its website, the TSDF site has been utilized upto the design capacity and no further dumping is to be carried out in the said site. The time-limit prescribed for the activity to be carried out has expired on 31/8/2010. It is submitted that any further dumping carried out thereafter would be unauthorized and illegal. The above referred facts are stated by the Gujarat Pollution Control Board on its website.
8.9 It is respectfully submitted that as on date, the TSDF site at Vatva has attended its optimal activity time-limit. As per the Gujarat Pollution Control Board, the time-limit stipulated was 31/8/2010. There is no further activity being carried out or to be carried out on this site. In fact, as on date, there is a garden, which has been put up on the utilized site and for some other portion, covering up of the said site is in process.
Thus, no further air or water pollution in so far as the said site is concerned, is envisaged.
Page 30 of 89C/WPPIL/47/2012 CAV JUDGEMENT 8.10 It is further submitted that in and around the periphery of 500 m. of the TSDF site at Vatva as well as Odhav, there exists the EWS housing colony of AUDA, the Dascroi Mamlatdar Office, Vinobabhavenagar comprising of 3000 residential accommodations near Vatva TSDF, Adinathnagar comprising of 7000 residential units, Pariyavaran Mandir, situated on the TSDF site at Odhav and several other houses where construction permissions have been granted. The Gujarat Energy Transmission Company, sub-station is also within the periphery of the said site.
8.11 It is respectfully submitted that the GDCR which are statutory regulations framed under section 12(2)(m) and 13(2)
(c) of the Gujarat Town Planning and Urban Development Act, 1976, are applicable to all developments in the Urban Development Area including the Ahmedabad Municipal Corporation areas as notified thereunder. Under the GDCR of 1987 as well as the GDCR of 2002, no hazardous activity can be permitted in residential zone. The regulations clearly stipulate the types of development, which may not be permitted in a residential zone. There is a statutory ban as regards the putting up of land, for obnoxious and hazardous uses, steel stock yard, truck terminal, saw mill, timber mart, ice factory and cold storage, junk yard, non-obnoxious and non-hazardous industries, wholesale markets, ware houses, storage of perishable and inflammable goods, hospital for infectious and contagious diseases, mental hospital, jail etc. In terms of the then GDCR the TSDF site could never have been put up by the Co-operative Society, in a Zone reserved under the statutory regulations for residential purpose.
Page 31 of 89C/WPPIL/47/2012 CAV JUDGEMENT 8.12 It is respectfully submitted that the area surrounding the treatment plant was allotted and reserved as a residential area in the revised development plan of the year 1987, as also at present, under the revised development plan approved by the Government on 18/5/2002. The land in dispute, has been is allotted as residential zone-I. Thus, in the said area, as per the GDCR framed under the Town Planning Act, the landfills site could never have been set up.
8.13 It is further submitted that the AMC has declared its intention for the Draft Town Planning Scheme No.73 and 93 at Vinzol and Town Planning Scheme No.104, 112 and 113 at Odhav. The Draft Town Planning Scheme was duly notified in the Official Gazette under section 41 of the Town Planning Act. Prior to making any Town Planning scheme under the provisions of section 41, the appropriate authority declares its intention to make such a scheme and cause the same to be published. Section 47 refers to the objections, which may be raised to the draft scheme and the considerations of the same. It is note worthy that in so far as T.P. Scheme No.73 and 93 which relates to the areas involved in the present litigation, no objection has been raised by the Gujarat Pollution Control Board or the Green Environment Services Co-operative Society. The said draft scheme has been sanctioned by the Government and now constitutes part of the Act.
8.14 The area in dispute was brought within the purview of the Corporation in the year 2006. Prior thereto, the land in dispute was managed by AUDA. In the year 2000, AUDA started acquiring land for putting up the ring road Page 32 of 89 C/WPPIL/47/2012 CAV JUDGEMENT admeasuring 76 k.m., passing through the land in dispute i.e. within the area of 500 meters periphery to TSDF Site at Vatva. Between the years 1998 to 2001, 40% of the land of land owners owning land on the periphery of the ring road, was handed over to AUDA. Necessary betterment charges were also paid under the clear understanding that the said owners would be permitted to develop the land in the final plot. The authorities under the Town Planning Scheme, having taken possession of 40% of the land belonging to persons within the periphery of the ring road, situated within 500 meters of TSDFs at Vatva, are under an obligation to permit the land owners to put their land to use as promised.
8.15 It is respectfully submitted that no other activities except, as prescribed under the GDCR is permissible in so far as Residential Zone is concerned. The use of land for TSDSF site within the residential Zone itself clear violation and against the permitted development. The area of 500 sq.meters around the TSDSF site is to be maintained by the entity who is using the site for the said purpose. The other surrounding land-holders, 40 percent of whose land has been forfeited towards development, and who have paid betterment charges, for the development of infrastructure, cannot be compelled to restrict the usage of their lands whilst all other authorities including the State Government, proceed to put up ring-roads etc. If the guidelines are so interpreted then the same would amount to the acquisition of land without any compensation.
8.15 It is respectfully submitted that 40% of the land of land owners within the T.P. scheme nos.73 and 93 in so far as Vinzol is concerned and revenue survey nos. 104, 112 and 113 Page 33 of 89 C/WPPIL/47/2012 CAV JUDGEMENT in so far as Odhav is concerned, the land has been deducted by AUDA for development purposes. The said land vests with the Area Development Authority and the concerned land owners have also paid betterment charges for the development of the said land. The entire ring road of 76 k.m. transverses through this disputed area. The entire ring road of 76 k.m. is constructed and operational. Non-agricultural use permission for the development of the said land has already been granted to several land owners owning and occupying the land within this area. In that view of the matter, the State Government would be stopped from restraining the land owners to develop the land, considering that 40% of the land holdings has been deducted and the ring road constructed thereon as also the grant of N.A. permission on payment of due premium. It is further submitted that under the provisions of Town Planning Act, the intention to declare the town planning scheme and the deduction of 40% of the holdings of land owners within the concerned area itself contains a permission to develop the balance 60% of the land held by the land owners. It is further noteworthy that the 40% of the land so deducted is lost by the land owners and no compensation for the same is received. Furthermore, additional betterment charges have also been paid by the land owners towards the development of the said area. The State Government and its functionaries are now attempting to reverse the clock and put it to the situation prior to the declaration of the intention to put up the T.P Scheme. It is respectfully submitted that under the criteria stipulated under the guidelines framed by the Central Pollution Control Board under the Hazardous Wastes (Management and Handling) Rules,1989, onus has been imposed on the operators of the TSDF, to ensure that the Page 34 of 89 C/WPPIL/47/2012 CAV JUDGEMENT landfill site shall be atleast 500 m. from a notified habituated area. It is settled law that the polluters are liable to pay. Persons, who have purchased land in accordance with the town planning scheme, put up constructions as per the GDCR, after having obtained necessary permissions from the state functionaries, cannot be restricted from utilizing their lands.
8.16 It is respectfully submitted that to the best of the knowledge of the present deponent, no permission for setting up of the landfill site at Vatva has been obtained by respondent no.10 from AUDA or AMC. Under the GDCR of 1987 as also of 2002, no construction can be put up without prior permission of the concerned authority i.e. AUDA or AMC.
8.17 It is respectfully submitted that section 117 of the Town Planning Act stipulates that when permission for such development has not been obtained under this Act, such development shall not be deemed to be lawfully undertaken or carried out by reason only of the fact that permission, approval or sanction required under such other law for such development has been obtained. The Act thus mandates a permission from the area Development Authorities irrespective of any other permission obtained from any other authority under any other law.
8.18 It is respectfully submitted that, there is no declaration, as stipulated under the Criteria For Landfills, with regard to construction restrictions in and around, a Zone of 500 m. around a landfill boundary after the landfill location has been finalized. In fact, the Area Development Authorities have proceeded with the town planning scheme and under the Page 35 of 89 C/WPPIL/47/2012 CAV JUDGEMENT development plans also, this area is declared as a residential zone. Upon the declaration of the intention to put up the town planning scheme, no authority has objected to the putting up of the said scheme.
8.19 It is respectfully submitted that all said and done, the criteria for hazardous waste landfill is merely a guideline to be followed as far as is possible and feasible. The activities period for the present site at Vatva now stand concluded. In fact, a garden has been set up over the landfill site. Thus, as on date, there exists no apprehension in so far water and air pollution is concerned. It is also noteworthy that in Pithampura-Indore, Rajasthan and Madhya Pradesh, there is no such periphery considered or maintained in and around the TSDF SITES.
8.20 In light of the facts and circumstances referred to herein above, the State Govt. and the GPCB along with the contesting respondents, and the Green environment services Co-op Society, may work out remedial measures which may govern all present as well as future development. The respondent no.1 and 2 have suggested remedial measures and the said measures, at one stage, found favour with the State Govt., and the AMC on that basis even revoked the suspension orders. It is respectfully submitted that such remedial measures may be considered by the Corporation and the State Government and be made applicable to all occupiers and owners of land in and around this area.
8.21 It is respectfully submitted that, the criteria prescribed stipulates that if it is absolutely essential to site a landfill Page 36 of 89 C/WPPIL/47/2012 CAV JUDGEMENT within the restricted zone, then appropriate design measures are to be taken and permission from SPCB/PCC should be obtained. Considering that the Green environment services society put up the TSDF site, within the residential zone and the PCC consented to the same, the design for the TSDF site, must have taken suitable design measures.
8.22 It is respectfully submitted that various communications which have been ensued between the authorities along with the translated copies which amply convey that for the first time in the year 2010, the criteria of the guidelines were brought to the notice of the Corporation, by which time, several planning schemes have been granted as well as owners and occupiers of the land under the Town Planning Scheme, 40% of the land has been deducted for the development."
9. An additional affidavit-in-reply has been filed on behalf of the Respondent no.11, Ahmedabad Builders Association duly sworn by one of its members of the Managing Committee, inter alia, stating as under:-
9.1 The respondent no.11 herein had submitted before the Hon'ble Court that the land in question, under the 1st Development Plan as sanctioned in the year 1987, under section 17 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the T.P. and U.D. Act) as well the Revised Development plan in the year 1997 is designated as a predominantly residential zone. The Revised Development Plan of 2002 has also notified the area Page 37 of 89 C/WPPIL/47/2012 CAV JUDGEMENT in dispute as a residential zone. It was specifically contended that mandatorily for the development to be carried out within the area, necessary permission under the T.P.Act, 1976 is mandatorily required. In view of the said submissions, this Hon'ble Court, vide order dated 14/3/2013, was pleased to direct the A.M.C. i.e. the respondent no.3 and 4 herein and respondent no.10 i.e. Green Environment Service Co-operative Society Ltd., to state by way of an affidavit as to whether any development permission has been obtained by the Green Environment Service Co-operative Society Ltd.
9.2 The affidavit dated 26/3/2013 filed by the respondent Corporation, validates the stand of the present deponent. The Corporation categorically states that as mandatorily required under the Gujarat Town Planning and Urban Development Act, 1976, Green Environment Service Co-operative Society Ltd., has not obtained any permission or sanction from the A.M.C. The Corporation further submits that regulation 2.9 of the Gujarat Development Control Regulations, provides for definition of hazardous buildings and regulation 3.1 provides for application for development permission and considered that the storage of solid waste by dumping on a site, would constitute hazardous activity. Regulation 32 provides the use zone table. In a residential zone, obnoxious use is not permissible. Under regulation 32(5)(6), development may be permitted by a competent authority for dumping of solid industrial waste subject to NOC and conditions laid down by the Pollution Control Board in the general industrial zone or special industrial zone or obnoxious and hazardous zone as the case may be. Even in the agriculture zone, as stated by the Corporation, permission of the competent authority is required Page 38 of 89 C/WPPIL/47/2012 CAV JUDGEMENT for dumping of solid industrial waste. Admittedly, in the facts of the present case, no development permission has been obtained by the respondent no.10.
9.3 That the contention of the respondent no.10 that since the site has been put up pursuant to directions issued by this Hon'ble Court, no development permission or any other permission is required to be obtained, is incorrect. Approval from this Hon'ble Court for putting up of the site could never mean that all other applicable statutory laws enforceable for any development in the State, need not be complied with and the Co-operative society be permitted to develop the site as it so deems appropriate. The TSDF site admeasures 66,885 sq.meters and consists of a solid RCC structure. If the development permission is required to be taken by every authority, society, corporation, individual including statutory bodies such as the Gujarat Electricity Board for carrying out any development on the land, the respondent no.10, which is a co-operative society established by its members to provide dumping and management of hazardous waste generated by the industrial units of its members, cannot be precluded from the mandatory, stipulations of law. Statutory provisions do not apply selectively. As stated by respondent no.10 in its reply that the lands bearing Survey Nos. 89, 90 and 91 were purchased by respondent no.10 after obtaining necessary permission under section 73 of the Bombay Tenancy and Agriculture Land Ceiling Act. The contention raised by respondent no.10 that they are precluded from the operation of the Gujarat Town Planning and Urban Development Act and the G.D.C.R., is clearly not tenable. The contention of the respondent no.10 that the identification of sides, grant o Page 39 of 89 C/WPPIL/47/2012 CAV JUDGEMENT authorization and closure is regulated under the rules frame under the Environment Protection Act of 1986 and no other permission under any other law so applicable, is required to be taken, is not only a misreading of the statutory provisions but an unequivocal admission that no sanction or development permission as required, has been obtained.
9.4 That the respondent no.10 has further contended that the present deponent has no authority to file the present affidavit. It is respectfully submitted that in the Civil Application filed, seeking impleadment, the present deponent had clearly stated that the respondent no.11 is an association of builders registered under the Bombay Public Trust Act, bearing registration No GUJ-1979- Ahmedabad dated 10/1/1990. The petitioner Association comprises of 900 members, several of whom are land owners vitally concerned with the issues raised in the petition. The resolution of the Ahmedabad Builders' Association, authorizing the deponent along with Shri Batukbhai Patel, together or individually, to litigate, to espouse the cause of its members in the present litigation, was also placed on record. The memorandum of association is not annexed in order to avoid making the record bulky. The present deponent craves leave to place the same for the kind perusal of the Hon'ble Court as and when required.
9.5 The Gujarat Pollution Control Board has published its Action Plan for Vatva TSDF site. The said Action Plan states that the time limit for the activity of the TSDF site at Vatva expires on 31/12/2010. The site has been utilized upto the design capacity and no further dumping is to be carried out at the said site. It is stated by the Gujarat Pollution Control Board Page 40 of 89 C/WPPIL/47/2012 CAV JUDGEMENT that the TSDF authority may approach the Ministry of Industries for upgradation of TSDF under various schemes.
Thus, as per the Gujarat Pollution Control Board itself the time limit for usage of the site has expired on 31/12/2010. The statement made by the respondent no.10 to the effect that the site is in the process of closure, is incorrect. Even as on date, dumping activity is being carried out despite the fact that as reflected on the Gujarat Pollution Control Board website, the TSDF at Vatva has attended its optimal capacity on 31/12/2010. It is noteworthy that the TSDF site is an RCC structure which is required to be scientifically monitored and filled up. In view of the fact that a site is required to be identified or a new cell is required to be put up, further continuous dumping on this site would result in the RCC structure cracking up and hazardous solid waste permeating in the said site levels, creating serious crises of no return. Even as on date dumping activities are being carried out on the said site.
9.6 Considering the averments made in the Civil Application and after hearing all concerned including respondent no.10, this Hon'ble Court was pleased to allow the Civil Application, being Civil Application No.2749 of 2013 filed by respondent no.11. It is in pursuance of the order passed by this Hon'ble Court that the present deponent was impleaded as party respondent and has filed necessary affidavit in response to the averments and issues raised in the present petition.
9.7 The respondent no.10, has further contended that the land abetting the TSDF Site is an agricultural land and no permission for N.A. use is granted in respect thereto. The map Page 41 of 89 C/WPPIL/47/2012 CAV JUDGEMENT annexed at page199 graphically depicts the properties existing within the periphery of 500 m. of the land fill site.
9.8 As pointed out in the earlier affidavit-in-reply, it is noteworthy that the Corporation has acquired 40% of the land of land owners within the Town Planning Scheme 73 and 93 in so far as Vinzol is concerned and revenue survey no.104, 112 and 113 in so far as Odhav is concerned, has been deducted by AUDA for development purposes. Not only do the said lands vest with the Area Development Authority and the concerned land owners have already paid betterment charges for the development of the said land. The entire ring road of 76 km. is traversing through this disputed area. As on date, the entire ring road is constructed and operational. Having deducted 40% of the land holdings of land owners and having constructed a ring road on the said land and also having granted N.A. permission on the payment of due premium, the State Government would be stopped from restricting the land owners from developing their land.
9.9 That in and around the periphery of 500 meters of the TSDF site at Vatva as well as Odhav, there exists the EWS housing colony of AUDA, Dascroi Mamlatdar office, Vinobabhavenagar comprising of 3,000 residential accommodations near Vatva TSDF, Adinathnagar comprising of 7,000 residential units, Pariyavaran Mandir, situated at the TSDF site at Odhav and several other houses where construction permissions have been granted. The Gujarat Energy Transmission Company, Sub Station is also within the periphery of the said site."
Page 42 of 89C/WPPIL/47/2012 CAV JUDGEMENT
10. Submissions on behalf of the Petitioners :
Mr.A.A. Zabuawala, the learned advocate appearing for the petitioners submitted that the issue raised in this petition is one relating to the health of lacs of people residing very much adjacent to the hazardous waste landfill site. In such circumstances the respondent nos.1 and 2 could not have been granted permission by the Ahmedabad Municipal Corporation to put-up residential flats in the name of Paradise Park which is just adjacent to the landfill site. Mr.Zabuawala submitted that thousands of tons of hazardous medical wastes has been dumped at the landfill site and the ill-effects of the same on the people could be beyond imagination.
Mr.Zabuawala submitted that assuming for the moment that prior to finalization of the location of the landfill site, the human habitat was already in existence by itself is no ground to permit other people to start residing in the nearby vicinity at the cost of their health. The sum and substance of the submissions canvassed on behalf of the petitioners is that after having known that there exists a hazardous waste landfill site, the Corporation ought not to have granted permission for construction of residential flats which is just 100 meters from the landfill site. Even though many persons may have booked flats in the Paradise Park developed by respondent nos.1 and 2, they should not be permitted to reside at that place as it is the duty of the State to protect its citizens and take all due care as regards their health. According to the petitioner, the permission should be cancelled and the respondent nos.1 and 2 should be directed to refund the money deposited by various persons who have booked the flats in Paradise Park.Page 43 of 89
C/WPPIL/47/2012 CAV JUDGEMENT
11. Submissions on behalf of the respondent nos.1 and 2:
Mr. C.B.Upadhyay, the learned advocate appearing for the respondent nos.1 and 2 submitted that this petition in the nature of a Public Interest Litigation is not a bonafide litigation and has been filed with an oblique motive. According to Mr.Upadhyay it is too late in the day for the petitioner to submit that people should not be permitted to take-over the possession of the flats in Paradise Park since the construction is almost completed and his client is waiting for grant of Building Use Permission by the Corporation.
According to Mr.Upadhyay it is only due to the pendency of this litigation that the Corporation has to withhold the grant of B.U. Permission. No sooner the B.U. Permission be granted, than all those people who have booked flats, would be handed- over the possession of the same and they would start residing.
Mr.Upadhyay further submitted that the very edifice of this petition that the health of the people would be affected as there is a landfill site adjacent to the Paradise Park, is without any basis because much before the hazardous waste landfill site came to be established, thousands of people had already started residing in the vicinity and as on today there are various residential colonies all around the landfill site. Till this date there has been no complaint as regards any ill-effects on human beings due to the hazardous waste landfill site and, therefore, the apprehension expressed by the petitioner in public interest regarding the same is without any foundation.Page 44 of 89
C/WPPIL/47/2012 CAV JUDGEMENT Mr.Upadhyay submitted that his client started with the construction only after seeking prior permission which was duly granted by the Corporation. His client has invested a huge sum of money by now and if B U Permission is not granted by the Corporation, then his clients would suffer a huge financial loss which perhaps would ruin their whole life.
Mr.Upadhyay submitted that the authorities in the first instance ought not to have finalized such a location for the hazardous landfill site which was already surrounded by a human habitat. He also submitted that after finalizing the site, the authority concerned ought to have declared that the area within 500 meters of such a site would be a buffer zone with a clear public notice in that regard and with further clarification that no development would be permitted in the buffer zone. Having not done so and having permitted his clients to complete the construction, now at this stage, it would be too harsh upon his clients to say that the permission was wrongly granted by the Corporation.
12. Submissions on behalf of the State Government :
Mr.P.K.Jani, the learned Government Pleader appearing for the State respondent submitted that the Forest and Environment Department has not given any permission to the respondent nos.1 and 2 to construct residential flats in the name of Paradise Park. According to Mr.Jani on the contrary the Forest & Environment Department had called upon the Ahmedabad Municipal Corporation in 2011 to clarify its stance and to ensure that there was no violation of any of the Page 45 of 89 C/WPPIL/47/2012 CAV JUDGEMENT guidelines issued by the Central Pollution Control Board. Mr.Jani submitted that the stance of the AMC that the Forest & Environment Department had granted NOC for construction of Paradise Park and due to such grant of NOC they had granted permission for putting-up construction, is absolutely false. Mr.Jani submitted that there is no provision in the Environment Protection Act, 1986 or in any other law, for the time being in force, to grant permission for the construction of building by the Forest and Environment Department.
Mr.Jani invited our attention to a letter dated 8/12/2010 addressed by the Forests & Environment Department of the State Government to the Municipal Commissioner, Ahmedabad Municipal Corporation, wherein directions were issued under Section 5 of the Environment Protection Act, 1986 to ensure the following:
i) The permission granted to Paradise Park shall be reviewed by the Ahmedabad Municipal Corporation and take action immediately thereof.
ii) Instructions shall be given to the Local Officers dealing with the grant of permission to housing project not to grant permission nearby landfill site upto a distance of 500 meters around such sites.
iii) No such permission be given to any residential projects in the area of 500 meters around the TSDF sites in other parts of the city of Ahmedabad where such TSDF are located.
Page 46 of 89C/WPPIL/47/2012 CAV JUDGEMENT Mr. Jani very vociferously submitted that had the AMC acted on the directions issued vide letter dated 8/12/2010 and reviewed the permission granted in favour of the respondent nos.1 and 2, then the situation which has cropped-up today could have been avoided. According to Mr.Jani, in 2010 the construction had not even commenced and it was the duty on the part of the AMC to have taken the permission in review and ought to have passed the necessary order in that regard. Having not done so, the stance of the Corporation that in the GDCR framed by the State Government the area has been earmarked as a residential zone, is nothing but a lame excuse to wriggle out of their liability.
Mr.Jani submitted that in such circumstances, it would be hazardous to permit the people to reside in the periphery of around 100 meters from the landfill site.
13. Submissions on behalf of the Respondent no.4 - A.M.C.:
Mr. S.N.Shelat, the learned Senior Advocate appearing for the Ahmedabad Municipal Corporation submitted that the Corporation granted permission in favour of respondent nos.1 and 2 to commence with the construction in the year 2011 and the said permission was granted subject to the contents of the letter dated 21/1/2011 addressed by the State Government in that regard. Mr.Shelat submitted that the General Development Control Regulations framed by the State Government are applicable to the areas falling within the Ahmedabad Municipal Corporation including the areas which were part of the Urban Development Authority. According to Page 47 of 89 C/WPPIL/47/2012 CAV JUDGEMENT Mr.Shelat the area in question falls within the residential zone and such being the position the permission was granted in favour of the respondent nos.1 and 2 for putting up construction of Paradise Park. Mr.Shelat submitted that once such permission has been granted even in favour of the Executive Engineer SETCO Division for construction of a sub- station in T.P.No.73 within 500 meters of the landfill site.
Mr.Shelat submitted that till this date, the Corporation has not granted the Building Use permission and would abide by any of the directions which this Court may deem fit to issue considering the nature of controversy.
14. Submissions on behalf of the Respondent no.10, Green Environment Service Co-operative Society :
Mr.Mitul Shelat, the learned advocate appearing for respondent no.10, submitted that the Green Environment Service Society was constituted pursuant to the directions issued by this Court in the case of Pravinbhai Jashbhai Patel (supra). He submitted that the site near Vinzol village at Vatva was identified as the most suitable by the experts and accordingly the report of the experts was considered by the High Court and appropriate directions were issued in that regard. Mr.Shelat submitted that in compliance with the directions which were issued by this Court, the State Government issued a Notification declaring the lands in question as notified lands for the purpose of waste disposal site. He submitted that the landfill sites were put to use in accordance with the notification dated 14/12/1995 and the Page 48 of 89 C/WPPIL/47/2012 CAV JUDGEMENT provisions contained in the Hazardous Wastes (Management & Handling) Rules, 1989.
Mr.Shelat submitted that the directions which were issued by this Court were within the knowledge of Ahmedabd Municipal Corporation as one of the party respondents in the said litigation and if that be so then it ought not to have granted permission in favour of the respondent nos.1 and 2 for construction of the Paradise Park.
Mr.Shelat submitted that since inception of the landfill site, approximately around 12,10,113.95 Metric Tons of solid waste has been treated and stored in the sites by his client.
15. Submissions on behalf of the Respondent No.11, Ahmedabad Builders' Association :
Mr.S.N.Soparkar, the learned senior advocate, assisted by Ms.Manisha Lavkumar, submitted that no permission could have been granted for setting-up of the landfill site in the area in question, more particularly when the authorities were very much aware that the area surrounding the same had already been inhabited by lacs of people. Despite such knowledge, the authorities proceeded ahead with sanctioning of the location for the landfill site. Mr.Soparkar submitted that if no development permission is granted for putting-up construction within 500 meters of the area, then that would create lots of problems, inasmuch as huge parcels of land would remain undeveloped and there is every possibility that the same may get encroached upon. Mr.Soparkar submitted that there is nothing on record to suggest that due to such hazardous Page 49 of 89 C/WPPIL/47/2012 CAV JUDGEMENT landfill site, the health of people residing in the vicinity has been affected in any manner. Mr.Soparkar submitted that the members of the Association would sustain huge financial loss, if it is decided that no permission shall be granted for development within the area of 500 meters from the landfill site. Mr.Soparkar also submitted that even according to the Gujarat Development Control Regulations, the area in question falls within the residential zone and in and around the periphery of 500 meters of the TSDF site of Vatva as well as Odhav there exists the EWS Housing Colony of AUDA, Vinobabhavenagar comprising of 3000 residential accommodations, Adinathnagar comprising of 7000 residential units and several other houses where construction permissions have been granted.
Mr.Soparkar submitted that to the best of the knowledge of his client, no permission for setting-up of the landfill site at Vatva has been obtained by the respondent no.10 from the AUDA or AMC. Even under the GDCR of 1987 and 2002 as well, no construction could have been put-up by the respondent no.10 without the prior permission of the concerned authorities.
Mr.Soparkar submitted that although the Central Pollution Control Board has issued instructions as regards the distance to be maintained for setting-up of the TSDF site from the human habitat, yet they remain in the realm of guidelines and have no statutory force. Mr.Soparkar submitted that some via- media should be worked-out so as to ensure that the development is also not stalled and at the same time the health of the people is also protected.Page 50 of 89
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ANALYSIS :
16. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our determination in this petition is, whether we should permit the authorities to sanction the development plans and grant permission for construction of the housing projects within the radius of 500 meters of the landfill site.
17. The picture that emerges from the case made out by the petitioner, the stance of the respective respondents and the rival submissions canvassed on either side is thus :-
1) The respondent nos.1 and 2 have constructed residential flats in the name of Paradise Park situated at Town Planning Scheme No.73, Final Plot No.38/2/1 and 38/2/2 , Ward-Ramol-
Hathijan, Ta: Dascroi, Mouje Vinzol.
2) The Paradise Park constructed by respondent nos.1 and 2 is very much adjacent to the landfill site where the hazardous waste is collected, treated, stored and disposed of in accordance with the Hazardous Wastes (Management & Handling) Rules, 1989. This landfill site is being maintained by the respondent no.10, Environment Service Cooperative Society.
3) The permission to set-up such a landfill site was granted sometime in the year 1998-99, whereas the permission granted to the respondent nos.1 and 2 for construction of Page 51 of 89 C/WPPIL/47/2012 CAV JUDGEMENT Paradise Park was subsequent in point of time, i.e. 2010.
4) It appears that before the grant of permission to construct the Paradise Park, the landfill site was already in operation.
5) It appears that the State Government, Forests and Environment Department, vide letter dated 8th December 2010 addressed to the Municipal Commissioner, Ahmedabad Municipal Corporation, directed under Section 5 of the Environment (Protection) Act, 1986, to take into review the permission granted by it in favour of the respondent nos.1 and 2 for construction of the Paradise Park. It also appears that instructions were issued to the local officers of the Ahmedabad Municipal Corporation dealing with the grant of permission to the housing projects not to grant permission nearby the TSDF sites upto the distance of 500 meters. The Corporation was also directed that no such permissions be given to any residential projects in the area of 500 meters around the TSDF sites in other parts of the city of Ahmedabad where such TSDF sites are located. Along with the letter dated 8 th December 2010, the guidelines issued by the Central Pollution Control Board for setting up of operating facility for hazardous waste management were also forwarded. However, at a later stage, the State Government addressed one other letter dated 21 st January 2011 to the Ahmedabad Municipal Corporation to consider the representation of the respondent nos.1 and 2 seeking permission for construction of the Paradise Park on the ground that many residential projects near the TSDF sites were already in existence. Placing reliance on such letter of the State Government, the Ahmedabad Municipal Corporation Page 52 of 89 C/WPPIL/47/2012 CAV JUDGEMENT proceeded ahead to grant permission for construction in favour of the respondent nos.1 and 2.
6) According to the criteria fixed for the hazardous waste landfills, a landfill site should be at least 500 meters away from a notified habitat area and a zone of 500 meters around a landfill boundary should be declared as a 'No Development Buffer Zone' after the landfill location is finalized.
7) It also appears that when the location for the hazardous waste landfill was finalized, many residential colonies were already in existence which is suggestive of the fact that before finalizing the location and granting permission to set-up the hazardous waste landfill site, the authorities remained completely oblivious that very much adjacent to the site people had already started residing since long.
8) According to the General Development Control Regulations framed by the State Government, the area where the landfill site is situated has been notified as a residential zone and considering the same, permission was granted in favour of respondent nos.1 and 2 to put-up the construction. Prior to the establishment of the landfill site at Vatva, the development plan under the Gujarat Town Planning Act had already been sanctioned in the year 1987. The entire area in dispute admeasuring around 20 lac sq.yards was reserved as a residential zone. The revised development plan sanctioned in the year 1997 as well as the revised development plan sanctioned in the year 2002 also notified the area in dispute as a Residential Zone - R-1.
Page 53 of 89C/WPPIL/47/2012 CAV JUDGEMENT 9) According to the respondent no.11 - the Ahmedabad
Builders' Association, the landfill site could not have been sanctioned in a residential area inhabited by lacs of people and it was a mistake on the part of the authorities in finalizing such location and granting permission for the same.
10) Around 40% of the land of the owners within the T.P. Scheme Nos.73 and 93 so far as Vinzol is concerned, has already been deducted by the AUDA for the development purposes. The said land vests with the Area Development Authority and the respective land owners have also paid the betterment charges for the development of that land. If on account of the landfill site permission is refused by the authorities for putting-up construction, then in such circumstances thousands of hectares of land will remain as it is without any development on the same with the likelihood of the same being encroached upon.
11) It is not possible to close down the landfill site because as on today two cells have already outlived its life, whereas the third cell at the landfill site appears to have been sealed about three years back and could not be said to be dead. If that be so, then according to the petitioners, the same would have serious ill-effects on the health of the people residing within the vicinity of the same due to soil pollution leading to contamination of ground water.
18. It appears from the materials on record that a meeting was convened on 5th September, 2011 relating to the environmental aspects policy of urban planning and development, implementation of plastic waste (M&H) Rules Page 54 of 89 C/WPPIL/47/2012 CAV JUDGEMENT and implementation of the Noise Pollution (Regulation and Control) Rules, under the Chairmanship of Dr.S.K.Nanda, I.A.S, Principal Secretary, Forests and Environment Department. In the said meeting, the issues relating to the building construction projects around the TSDF sites were discussed. The points which were discussed are as under:-
1. Issue related to Building Construction projects around TSDF sites.
Initiating the discussion, Shri J.K. Vyas, Director (Environment), outlined about the construction of residential and commercial projects in the close proximity of the TSDF sites. Elaborating on it, he illustrated about the upcoming of such projects in vicinity of TSDF-NEPL on the AUDA ring road. Ahmedabad and TSDF-Vatva at Vinzol, Ahmedabad. He stated that the Forests and Environment Department received representations related to this issue. Environmental and Pollution related aspects of the issue were discussed at length. Shri J.K.Vyas, Director (Environment), Forests and Environment Department informed the participants about CPCB guidelines in this regard to keep a buffer zone of 500m around such TSDF sites.
Shri I.P.Gautam, Principal Secretary, UD & UHD stated that, there was no legal framework for keeping buffer zone around such sites under Urban Development Regulations. The issue is however important and would be included in Development Plans and Town Planning Schemes by making appropriate amendments. The issue Page 55 of 89 C/WPPIL/47/2012 CAV JUDGEMENT would be also considered while framing the provisions of GDCR so that the developments of the residential/commercial buildings in the proximity of such TSDF sites are avoided. He also stated that the 500 m zone around such sites shall be kept reserved for plantation. He suggested that no development zone as per the CPCB guidelines is an ideal situation, however, issues related to the compensation for such land and upcoming of the unauthorized development in these areas such as slums etc shall also have to be kept in mind.
Shri Hardik Shah, Member Secretary, Gujarat Pollution Control Board suggested that a buffer zone of at least 100 m around such sites shall have to be maintained, the thick plantation in this buffer zone shall also have to be maintained, the ground water withdrawal in at least in one kilometer radius of such site shall be restricted and concerned authority shall have to ensure supply of water in this area by other means to minimize the impacts of such sites on its surroundings. He also suggested that ground water monitoring and ambient air quality monitoring is required to be done in one kilometer radius of such sites.
19. After detailed deliberations on the issue, the following decisions were taken:-
1. A provision of keeping a 500 meter buffer zone around the new TSDF CETP sites would be included in the new Development Plan & TP Schemes by the UD & UH Page 56 of 89 C/WPPIL/47/2012 CAV JUDGEMENT Department by appropriate amendments.
(Action : UD & UHD)
2. A provision of keeping 100 meters buffer zone around the existing TSDF sites will be made for construction projects. (Action : UD&UHD/Municipal Corporation/Urban Development Authorities.)
3. The thick plantation of appropriate species in this buffer zone of 100 meters around existing TSDF sites and 500 meters around new TSDF sites (as applicable) would be carried out and maintained by the builders project proponents. (Action : UD&UHD/Municipal Corporation/ Urban Development Authorities.)
4. The ground water withdrawal in an area of at least one kilometers radius of TSDF/CETP sites would be restricted and concerned authorities shall ensure water supply through surface water sources only in this area. (Action: UD & UHD/Municipal Corporation/Urban Development Authorities.)
5. Study of Ground water quality and ambient air quality is required to be carried out around TSDF/CETP sites. Ground water quality monitoring and ambient air quality monitoring shall be carried out by the GPCB in one kilometer periphery from the boundaries of TSDF/CETP sites. (Action: GPCB)
6. Environmental clearance of construction projects would be cleared within a stipulated time period, if the Page 57 of 89 C/WPPIL/47/2012 CAV JUDGEMENT applications are complete in all respects. (Action: SEIAA)
7. The issue regarding conflicts in the provisions of NBC adopted by the SEAC at the time of issuance of Environmental Clearance and GDCR adopted by Municipal Corporations at the time of approval of the Town Plans, would be brought to the knowledge of the chairman of the SEIAA and decision in this regard would be communicated to the UD&UHD. The GDCR would be amended if necessary on the recommendations of the SEIAA. (Action: SEIAA/UD & UHD)
8. Urban authorities should not give the permission to the building construction projects as required under the EIA notification-2006 till the EC from the SEIAA is obtained. Also, Urban authorities should verify that whether the project proponents were circumventing the EIA notification's provisions through splitting up projects into phases and if they were found doing so & such practice should be stopped by all means by the local authorities. (Action: Municipal Corporations/Urban Development Authorities.)
9. Big townships & residential complexes coming up in the State have to earmark 6 % of the area for growing vegetables/fruits. Action: UD & HD/Municipal Corporations/ Urban Development Authorities.)
20. During the course of the hearing of this matter, few reports of the soil examination were placed for our Page 58 of 89 C/WPPIL/47/2012 CAV JUDGEMENT consideration and we noticed that the soil, which was collected as a sample for necessary tests contained 90% gypsum in the area of the landfill site. In such circumstances, vide our order dated 19th August, 2013, we directed the National Institute of Occupational Health, Meghaninagar, Ahmedabad, as well as the Gujarat Pollution Control Board, Gandhinagar, to visit the landfill site in question and to give a report as to whether the said landfill site, which according to the available report contained 90% gypsum, would have any adverse effect on the human habitation residing within the area of 15 to 500 meters from the said landfill site. We directed that the concerned authorities would inspect the soil of the landfill site and file its report within a fortnight thereafter.
21. The Committee has filed a detailed report in this regard. We deem it necessary to highlight few salient features of the report, throwing considerable light on the issue we are dealing with.
What is Hazardous Waste?
As per the definition of Hazardous waste, "It is a waste which by reason of its physical, chemical, reactive, toxic, flammable, explosive or corrosive characteristics cause danger or is likely to cause danger to health or environment, whether alone or when in contact with other wastes or substances".
At Gujarat Industrial Development Corporation (GIDC) Vatva, several industries generate spent sulfuric acid during their manufacturing process which is then Page 59 of 89 C/WPPIL/47/2012 CAV JUDGEMENT neutralized with lime. This result in the generation of gypsum, which is classified as hazardous wastes as per Schedule I of Hazardous Waste (Management, Handling and Transboundary Movement).
What is leachate?
Leachate is any liquid that is passing through matter, extracts solutes, suspended solids or any other components of the material through which it has passed.
(Source:-
http://en.wikipedia.org/wiki/Leachate) What is Gypsum?
The gypsum is in the form of Calcium Sulfate (CaSo4.2H2O). The gypsum waste is not only gypsum but it is contaminated with other wastes such as organic and inorganic contaminants generated from Dyes and Dyes intermediate industries, heavy metals and fluoride (In the form of CaF2 generated from Stainless Steel (Patta/Patti) industries etc., and were disposed at SLF, Vinzol.
22. The conclusions/observations made in the report are as under:-
The conclusion/recommendations are based on the on site observations, samples collection and the analysis results of the groundwater, surface-water, leachate, air, soil and noise level measurement carried out by Page 60 of 89 C/WPPIL/47/2012 CAV JUDGEMENT ● Recent field visit of technical team comprising of officials from GPCB, NPC NIOH and NABL accredited laboratory-Pollucon Laboratories Pvt. Ltd.
● Past field inspection, sampling and analysis
undertaken by RO GPCB-Ahmedabad and
Vatva during the years between 1998 and
2013;
● Audit report of Schedule I auditor GITCO;
● Experience gathered from SLF disasters
globally.
The monitoring, sampling and analysis of samples of TSDF was undertaken during the months of August/September 2013 by technical team. Observations, readings for the winter season could not be included due to paucity of time. Sampling and analysis for water, wastewater (Leachate), emission from vents, ambient air quality, soil and noise may differ during winter and so the conclusions and recommendations. In fact the concentrations of different parameters in air will be higher in winter compared to other seasons. The second phase monitoring is in progress.
● M/s GESCSL has capped all the three cells of TSDF. At present, Cell Nos. 1 and 2 are having vegetation cover. In Cell No. 3, the process of Page 61 of 89 C/WPPIL/47/2012 CAV JUDGEMENT vegetation cover is in progress. In the event of natural disasters like earthquake, cloud burst, torrential rain etc. approximately 12.50 lac MT of hazardous waste can pose a serious threat to the people living nearby. There are farms nearby and people are living in residential complex within 100 meter distance from this TSDF and their lives may be under constant threat;
● The field study at Secured Landfill facility, Vinzol, was undertaken jointly by GPCB, NPC, NIOH and Pollucon Laboratories Pvt. Limited during the month of September 2013, and the sampling and analysis results, are restricted to the study undertaken during this period only. However, these results may not hold true during future period of maintenance of the capped SLF as there are chances of reactions of various types of hazardous waste and this may lead to changes in the results. Continuous monitoring and inspection of SLF has to be undertaken by the facility owners, to take utmost care of the safety, health and environmental issues related to the human being residing in surrounding region.
Water and Wastewater (Leachate)
● Leachate generated from TSDF cell No. 3 is
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found to be having high concentrations of metals like copper, lead, cadmium, COD,BOD,TDS and Phenolic compound;
● Leachate wells provided in cell No.1& 2 are found dry as cells are closed since 2003 and leachate generation is very meagre;
● Borewell of Shradhha Developers is situated at about 100 meter from the TSDF site which is not in compliance with the decision made on 5th July 2012 meeting for not making borewells in an around 3 km. radius under the then Chairmanship of the Principal Secretary, Department of Forest and Environment, Government of Gujarat, Gandhinagar;
● Referring to the past results of the analysis of samples undertaken by GPCB of the borewells situated within and outside the TSDF, Vinzol premises indicate that the quality of groundwater of these borewells between the years 1998 and 2013 is found to exceed the acceptable limit required as per IS:
10500:2012 in terms of parameters such as TDS, Fluoride, Color, Magnesium, Lead, Phenolic Compounds, Copper, Cadmium etc. in some cases;
● The Analysis Reports (Ars) of ground water
and surface water within and outside the
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vicinity of TSDF site indicate that
concentration of parameters like Colour and TDS exceed in all samples. AT the same time, in some samples the parameters like fluoride, lead (Pb), Nickel (Ni), Chromium and Cadmium etc. exceed the permissible limits for drinking water standards as per IS 10500:2012;
● The reasons for increase in the concentration of contaminants in groundwater cannot be ascertained. However, with respect to the effect of SLF leachate on groundwater, the study may be assigned to expert national agencies like NEERI, IIT etc. Vent Emission/Ambient Air Quality ● The emission analysis results from the vents of cell No. 1 and 2 reveal that the pollutants are within the permissible limit;
● During field inspections the foul odour was not sensed at and around the TSDF except around the leachate well of Cell No. 3, owing to presence of leachate;
● M/s GESCSL had not provided vents in Cell No. 3 during technical team inspection and hence sampling/analysis could not be carried out for emission from vents in Cell No. 3.Page 64 of 89
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● The analysis reports of ambient air quality
within SLF premises and
Noise
● Noise level is found to be below the
permissible standards at and around TSDF site;
Soil ● The analysis report of the sample collected from the top soil cover reveals that it does not fall under schedule-II of HWM-2008 hence surface runoff water contamination is not envisaged in normal NIOH OPINION FOR THE AIR, VENT GAS, LEACHATE & GROUND WATER ANALYSIS REPORTS OF GESCSL SECURED LANDFILL SITE AT VINZOL.
• The summary report of the vent gas, ambient air, leachate and ground water analysis reports of GESCL secured landfill site of Vinzol prepared by NIOH Ahmedabad and GPCB-Pollucon laboratories- Surat is as follows:-
Air samples and Vent gas analysis report.
• The vent gas and ambient air monitoring results of NIOH-Ahmedabad and GPCB-Pollucon laboratories- Surat at cell-1,2 & 3 of the GESCSL secured landfill site Page 65 of 89 C/WPPIL/47/2012 CAV JUDGEMENT at Vinzol as well as at nearby residential area- Paradise Park situated at Vinzol village of Vatva Ahmedabad were thoroughly scrutinized. The results indicate that none of air pollutants namely RPM or PM10, PM2.5 CO,SO2, NO2, CL2, Hydrogen sulphide (H2S), Ozone(O3), lead (Pb), Ammonia (NH3), Benzene Arsenic (AS) and Benzo(a) pyrene exceeded the CPCB ambient air quality standards during the monitoring period of September and October 2013 only at both cell- 1,2 & 3 of secured landfill site as well nearest residential area Paradise Park. The VOCs and Hydrocarbons levels could not be compared as there are no CPCB ambient air quality standards for these pollutants.
Borewell water analysis report of residential areas • The water analysis reports of borewell water of Vinobabhavenagar (water tank) and Paradise Park of Vinzol were also scrutinized and compare with Bureau of Indian Standard for drinking water IS 10500:2012. The different chemical parameters measured namely metals-selenium, mercury, arsenic, polychloro biphenyls (PCBs), Poly Aromatic Hydrocarbons (PAHs), Tri-halomethanes and all the pesticides (6.1 to 6.19 of test reports for borewell water of residential areas- Vinobabhavenagar and Paradise Park-SP Ring Road, Vinzol) doesn't exceed the IS drinking water standard ISI 10500: 2012.
Page 66 of 89C/WPPIL/47/2012 CAV JUDGEMENT • However, the other chemical parameters such as TDS, colour, ammonical nitrogen, chlorine and fluoride concentrations were exceeding the acceptable limits of drinking water specifications of IS 10500:2012. However all these parameters are within the permissible limit in the absence of alternate source as per IS 10500:2012. In this Indian Standard Drinking water specification in Page-1, Table-1 under note it is as "it is recommended that the acceptable limit is to be implemented. Value in excess of those mentioned under "acceptable" render the water is not suitable, but still may be tolerated in the absence of an alternative source but up to the limit of indicated under "permissible limit in the absence of alternate source" in Column 4, above which the sources will have to be rejected . (Table 14) • In other nearby GIDC area of Vatva, the chemical parameters of TDS, colour, ammonical nitrogen, chlorine, sulfate and sulphide concentrations are exceeding the acceptable limits of drinking water specifications of IS 10500:2012. (Table 16) • These chemical parameters namely color, NH3-N, CL, SO4 and fluoride of the nearby residential area i.e. Paradise Park were higher or almost equal to the levels of chemical parameters of SLF.
• The concentration of chemical parameters in the nearby residential areas-paradise par (nearer to SLF) and Vinobabhavenagar which is more than 500 meters Page 67 of 89 C/WPPIL/47/2012 CAV JUDGEMENT away are lower than the concentration of chemical parameters at LF. This may be due to SLF being downstream.
Borewell Water analysis reports at SLF • The analysis report of borewell water samples of GESCSL secured landfill site situated at south west direction, north-east direction-upstream and west direction-downstream areas suggest that none of the chemical parameters exceeded the IS drinking water standard IS 10500:2012.
Leachate analysis report of SLF • On the analysis of report of leachates at collection well-1 & 2 GESCSL secured landfill site, it was found that the concentration of mercury at leachate collection well -1 & 2 were 0.20 and 0.019 mg/L, above the permissible limit of 0.001 mg/L as per IS 10500:2012 for drinking water. The leachate analysis shows much higher levels of almost all the parameters compared to borewell water which gives a possibility of these chemical percolating into groundwater preferably towards north east direction of landfill as per the technical EIA study report of hazardous waste disposal site and investigation of all dump sites in Ahmedabad district by NPC, New Delhi during the year January 1995.
Health Effects.
Page 68 of 89C/WPPIL/47/2012 CAV JUDGEMENT • There have been a number of epidemiological studies which have investigated whether there is a higher than usual incidence of adverse health events, such as cancer or congenital anomalies, in populations living near landfill sites. In general, these studies have used routinely collected data to compare the incidence of an adverse health outcome in the population living around a landfill site, or around a number of landfill sites, to the incidence in a reference area, such as the rest of the region or country. This type of epidemiological study is termed as ecological study. There are a number of methodological problems with this type of study. Such a study can only explore whether there is an association between potential exposures and the health effect under investigation. It cannot say whether or not the landfill site(s) caused the adverse health outcome (ie. Whether association is causal.) There is no assessment of whether the study population is actually subject of harmful exposures. It is assumed that those living near to the landfill site are 'exposed' and those living further away are 'unexposed'.
• In the present study the potential health outcomes are based on the basis of existing knowledge about the harmful effects of the pollutants analyzed.
• As per the available scientific reports the gypsum in the underground environment landfill site may become wet during rainy seasons or any flooding even Page 69 of 89 C/WPPIL/47/2012 CAV JUDGEMENT and become anaerobic (without oxygen) and hydrogen sulphide gasIH2s) is produced by the sulphur bacteria that feed on gypsum. The byproduct of these bacteria feeding on the gypsum is hydrogen sulphide gas.
• The scientific reports suggest that the exposure to hydrogen sulphide (H2s) gas can irritate the eyes, nose and throat. Eyes may become waterly, red and itchy. Exposure to H2S can also cause headaches, nausea (upset stomach), fatigue (feeling tired), shortness of breath, chest pain and other health related symptoms. Most people can smell H2S at levels much lower than the levels that can cause these health effects. Sensitive populations, infants, young children, the elderly, people with asthma or other respiratory problems and people with heart problems may be more likely to experience these symptoms from exposure to H2S. Further in the current situation a sewage treatment plant situated near the residential site - Paradise Park may also contribute to the H2S concentration and thereby increasing the effective concentration.
• Taking into account the serious and long lasting harmful effects of hydrogen sulphide and other potential gases generated from the decomposition of harmful materials in the landfill, it is recommended to take all necessary steps to prevent the inhabitation from any such exposure.
• The higher than CPCB a guideline value of mercury in Page 70 of 89 C/WPPIL/47/2012 CAV JUDGEMENT the leachate is also a potential hazards which may lead to exposure through groundwater and cause serious health effects and disability like neurotoxicity . However these health effects are insidious in onset and require a long period of surveillance. The leachate liquids should be carefully collected, transported and to be incinerated or disposed as per CPCB guidelines for hazardous wastes. The walls of the leachate wells should be properly managed and maintained in such a way that in future the leachates should not be leaked into the ground water from these leachate collection wells.
• The higher levels of TDS, sulphide, sulfate and fluoride also affect the drinking water quality and fluoride may lead to conditions such as skeletal and dental fluorosis and thus they should be monitored closely.
The borewell water of secured landfill site as well as other wells should be monitored for at least 30 years for all chemical parameters as per CPCB guidelines. If any of the chemical parameter exceeds it should be brought to the notice of GPCB for necessary action and guidance.
23. The recommendations/suggestions of the Committee, according to the report, are as under:-
The recommendations and suggestions are based on the criteria for hazardous waste landfills by CPCB, Delhi in respect of (1) location criteria and 92) Post closure criteria which are produced here for the quick reference Page 71 of 89 C/WPPIL/47/2012 CAV JUDGEMENT as under:
(1) Locational Criteria:
"A landfill site shall be atleast 500 meters from a notified habitated area. A zone of 500 meters around a landfill boundary should be declared as a no development buffer zone after the landfill location is finalized".
(2) Post Closure Criteria.
"After closure of the landfill, the owner/operator of the landfill shall continue to operate all leachate, gas and surface water management systems as well as continue environmental monitoring of landfill for a period of 30 years or until such time that harmful leachate is not produced for five continuous years.
Love canal episode is a glaring example about the environmental disaster of an unauthorized disposal site if not maintained in an environmentally sound manner and the serious consequences/disaster, it can create;
A. The local body were informed vide GPCB letter No. GPCB/Paripatra/NA/RJ/1/06/10253 dated 2 nd April 2006 wherein it is stated that industries shall be located at the distance of minimum 500 meters from residential area and school/colleges; which may be complied by all;
B. All TSDF operators shall be directed to install Page 72 of 89 C/WPPIL/47/2012 CAV JUDGEMENT continuous ambient air quality monitoring station for measurement of all related parameters along with weather monitoring stations at site;
C. All TSDF operators shall prepare the onsite/offsite disaster management plan and Emergency preparedness plan including regular mock drill reports which shall be implemented and the compliance reports for the same shall be submitted to concerned authority;
D. As per CPCB, Delhi letter No. B-29016 (SC)/1/07/HWMD/15813 dated February 19, 2007
"Escrow Accounts/Funds/insurance policies are required to be maintained by the operator of facility in order to assess the impacts, if any, during the post closure of a facility as well as to take appropriate remedial measures, if required, and also to meet expenses in case of occurrence of any unexpected eventualities, especially during the post closure monitoring period."
E. All SLFs shall prepare and submit a report on regular basis about the effect of disposal of hazardous waste on environment and on the health of human beings residing within 500 meter distance of SLF sites and also in nearby areas.
F. During recent field visits and while going through the previous records of analysis reports of borewells and leachate, toxins have been identified in some borewells samples where parameters exceed the permissible limit and this may affect the health of the people residing Page 73 of 89 C/WPPIL/47/2012 CAV JUDGEMENT nearby such facilities. It is therefore necessary to prepare a comprehensive post closure Environment Impact Assessment Report including hydro-geological study of SLF through an institute of national repute like NEERI, Nagpur. This report shall include all the three seasons observations ie. Summer, winter and monsoon showing impact aspects analysis of all environmental parameters and their effect on human health along with an environment management plan (EMP) for its mitigation due to the functioning and post closure of TSDF facility through advanced computer modelling. All local bodies shall fully comply with the suggestions and recommendations of this report before granting permission to any residential/commercial complexes. The local urban body may also consider to review zoning of areas already done earlier, based on this report.
G. The culpability of the buffer zone of 500 meters outside SLF premises needs to be fixed.
24. The report of the Committee makes it very clear that there should not be any human habitat within the 500 meters radius of the SLF sites. The report is quite disturbing and it is only after the necessary survey carried out by the team of experts that the true picture of the situation prevailing in the area has surfaced. The water analysis report of the borewells in the surrounding areas indicates presence of TDS, fluoride, magnesium, lead, phenolic compounds, copper, cadmium, etc. beyond the permissible limits. The Committee has also given more than a fair picture of the ill effects due to such dumping of hazardous solid waste at the landfill site.
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25. The Committee has led much stress on the fact that the gypsum in the underground environment landfill site may become wet during the rainy season or due to flooding and become anaerobic (without oxygen) and would produce hydrogen sulphide gas (H2S) due to the sulphur bacteria that feed on the gypsum. The Committee has also stated in its report about the effects of hydrogen sulphide. There is one more aspect which we would like to highlight and that is the sewerage treatment plant situated near the residential site Paradise Park. According to the report, in the current situation the sewerage treatment plant situated near the Paradise Park may also contribute to the H2S concentration. The Committee has also recommended, taking into consideration the serious and long lasting effect of hydrogen sulphide and other potential gases generated from the decomposition of the harmful materials in the landfill, to take all necessary steps to prevent the inhabitation from any such exposure.
26. We are not at all impressed by the submission canvassed by Mr.Soparkar, the learned senior advocate appearing for the respondent no.11 - Ahmedabad Builders' Association, that the distance of 500 meters to be maintained as a buffer zone from a landfill site is more in the nature of a guideline rather than a statutory restriction imposed by any law or rules in that regard. We can appreciate the anxiety on the part of the respondent no.11 to do away with the restriction of maintaining 500 meters of buffer zone from a landfill site but no permission to develop the land within 500 meters of a landfill site can be permitted at the cost of health of the people at large.
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27. The criteria provided by the Central Pollution Control Board for the hazardous waste landfills make it very clear that a landfill site should be atleast 500 meters from a notified habitated area. It further provides that a zone of 500 meters around a landfill boundary should be declared as a 'no- development buffer land' after the landfill location is finalized. This may be in the nature of a criteria or a guideline but the same should not be ignored on the premise that the law or any rules do not provide for the same.
28. We are also not impressed by the submission of Mr.Soparkar that the report of the experts should not be given undue importance because there is nothing to even remotely suggest that the quality of the groundwater has deteriorated due to the direct impact of the landfill site. The report of the experts is very clear that the leachate analysis showed much higher level of almost all the parameters compared to borewell water, thereby suggesting that the chemicals may have got percolated into the groundwater.
29. We are at pains to observe that each of the respondents is responsible in some manner or the other in creating the imbroglio. We also noticed during the course of hearing that each of the respondents tried to throw the blame on the other but, none was ready to shoulder or accept its responsibility or mistake. We do agree that when the landfill site was finalized, the authorities were very much conscious of the fact that in the surrounding area people had already started residing and, therefore, no permission, if any, could have been granted for establishment of the landfill site. However, the authorities proceeded ahead to give clearance to the landfill site in an Page 76 of 89 C/WPPIL/47/2012 CAV JUDGEMENT area thickly populated by human habitat. However, it is too late in the day to find fault with anyone but rather it is time to act with a view to protect the citizens from any health hazards. The landfill site is now closed. The society managing the same has used the site to its maximum and now there is no further scope of the site being used. Around 12.50 lac Metric Tonnes of hazardous waste has been dumped at the landfill site. The third Cell which, according to the experts, is still live, could pose a serious threat to the health of the people living nearby. This is not a case where an industry has been setup and is found to be causing pollution in the area making the life of the people miserable so that we may issue appropriate directions for closure. Here is a case of a landfill site which has been used and sealed for all times to come. Therefore, there is nothing we can do as on today so far as the landfill site is concerned, but we can surely intervene with a view to protect the health of the people.
30. It appears that to meet with the report filed by the team of experts comprising of the members of NIOH and GPCB, the respondent no.11 obtained an independent report of an expert in the field. In the said report prepared by one Mr.Jaydev Nansey of New Delhi, it has been stated that the report of the Committee does not establish any effect of the SLF on the surface and sub-surface waters around the site. According to the report of Mr.Nansey, the site has been designed in a technically and scientifically proven manner with impervious layers present on bottom, side and top of the SLF that leads to control and prevention of pollution from the site. It has also been stated that the ground and surface water studies from the vicinity of the SLF do not indicates any contamination of Page 77 of 89 C/WPPIL/47/2012 CAV JUDGEMENT the water. The site design has withstood the test of natural disasters such as earthquakes and flooding of the worse kind during the past years with no episode of pollution or contamination. According to Mr.Nansey, in the current situation the possibility of any effect of the SLF on human habitation in the vicinity of the facility is not foreseen. In short, the report placed by the respondent no.11 of an expert seeks to challenge the findings recorded by the Committee of experts.
31. The report of Mr.Nansey on which strong reliance has been placed by the respondent no.11 is hardly of any consequence so far as the case at hand is concerned. Let us assume for the moment that the experts are of the opinion that the landfill site will have no hazardous effect on human habitation in the vicinity, then in such circumstances, should we ignore the statutory prohibition imposed by the Legislature and override the same relying on a report of an expert. The answer has to be emphatically 'No'. This Court sitting in writ- jurisdiction cannot say that although there is a restriction imposed by the authority under a statute so far as the distance to be maintained from the landfill site and human habitation, the same should be ignored as the experts are of the opinion that such a landfill site would not pose any potential health hazard to the people residing in the vicinity of the same. It is for the authorities concerned to take into consideration such opinion, if any, and take appropriate decision in that regard. If the authorities concerned are of the opinion, having regard to the ill-effects of a landfill site on the humans, that the distance of 500 meters is not required to be maintained, then they may do away with such a restriction but so long as such restriction remains, we are duty bound to see that the same is complied Page 78 of 89 C/WPPIL/47/2012 CAV JUDGEMENT with in its letter and spirit unless such restriction imposed is found to be ultra vires any statutory provision.
32. In the aforesaid context, we may profitably look into the few decisions of the Supreme Court taking the view that court would not pass any order in exercise of its constitutional power which would amount to supplant the substantive law applicable or ignoring the statutory provisions dealing with the subject. In other words, the Supreme Court in many decisions has taken the view that even acting under Article 142 of the Constitution of India, it cannot pass an order or grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case.
33. In Martin Burn Limited v. Corporation of Calcutta, AIR 1966 SC 529, the Supreme Court, while dealing with a matter under the provisions of the Calcutta Municipal Act, 1951 relating to valuation, made the following observations which are worth noting :-
"We can now deal with the reasoning on which the High Court in the present case justified its order of remand. It realised that by making the order it was depriving the appellant of one of its chances to object to the valuation, namely, the chance under Section 139, but it felt that by upholding that right of the appellant it would be depriving the Corporation of its rates wholly as the time limit prescribed by Section 131(2)(b) had expired. It thought that it was faced with two evils and that it would be choosing the lesser of the two if it allowed the Corporation a chance to collect its rates. With great Page 79 of 89 C/WPPIL/47/2012 CAV JUDGEMENT respect, we find this line of reasoning altogether unsupportable. A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a court likes the result or not. When the High Court found that Section 131(2)(b) had been attracted to the case, it had no power to set that provision at naught."
34. In A.B.Bhaskara Rao v. Inspector of Police, CBI, Visakhapatnam, AIR 2011 SC 3845, the Supreme Court, while dealing with a criminal appeal arising from conviction for the offence punishable under the provisions of the Prevention of Corruption Act, 1988, and while considering the submission for reduction of sentence in a case where waiver of certain period as prescribed in the statute imposing lesser sentence than minimum prescribed was not permissible, the Supreme Court while taking the view that it cannot altogether ignore substantive provisions of a statute in order to do complete justice in exercise of power under Article 142 of the Constitution of India, made the following observations which are worth noting :
"h) The power under Article 142 of the Constitution is a constitutional power and not restricted by statutory enactments. However, this Court would not pass any order under Article 142 which would amount to supplant the substantive law applicable or ignoring statutory provisions dealing with the subject. In other words, acting under Article 142, this Court cannot pass an order or Page 80 of 89 C/WPPIL/47/2012 CAV JUDGEMENT grant relief which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case.
i) The powers under Article 142 are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject."
35. Considering the aforesaid principles of law as discernible from the aforenoted two decisions of the Supreme Court, we hold that the High Court, while functioning under Article 226 of the Constitution of India, should refuse grant of relief if it is found that a statutory bar operates effectively against the grant of such relief.
36. It is well-settled that right to life enshrined in Article 21 of the Constitution of India takes within its sweep right to a life which is worth living. It includes right to decent environment and right to live in a clean city. The legal responsibility of the State agencies to take care of the individual's health and to ensure his physical and mental wellbeing will, therefore, be a measure of the individual's right to health in a welfare state. Every sovereign state has a plenary power to do all things which promote the health, peace, morals, education and good order of the people and tend to increase the wealth and prosperity of the State. Maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society which Page 81 of 89 C/WPPIL/47/2012 CAV JUDGEMENT the Constitution makers envisaged. The obligation of the State to ensure the creation and the sustaining of conditions congenial to good health is cast by the Constitutional directives contained in Articles 39(e) & (f), 42 and 47 in part IV of the Constitution of India.
37. The Supreme Court in various decisions has held that the right to live with human dignity enshrined in Article 21 derives its life and breathe from the directive principles of State policy particularly Article 39(e) & (f), 41 and 42 and would therefore include protection of health as envisaged in the directives. The expanded meaning of right to life is wholly justified, for, without health of a person being protected and his well being looked after, it would be impossible for him to enjoy other fundamental rights such as rights to freedom of speech and expression, to move freely throughout the territory of India, to practice any profession or carrying on any trade, occupation or business, to form associations guaranteed by Article 19 in a positive manner. Without a guarantee of health and well being most of these freedoms cannot be exercised fully. To make other rights meaningful and effective right to a healthy life is the basis underlying the constitutional guarantees. All that the courts have done is to provide redressal by a meaningful and just interpretation to the right to life and commanding enforcement of the duties of a welfare State. The Court itself being an authority and therefore 'State' within the meaning of Article 12 which definition is made applicable by Article 36 to part IV containing the Directive Principles of State Policy, has to bear in mind these directives in its decision making process.
38. Health is a state of complete physical, mental and social Page 82 of 89 C/WPPIL/47/2012 CAV JUDGEMENT wellbeing. The term 'health' implies more than mere absence of sickness as held by the Supreme Court. The Apex Court of this country has played a decisive role in realization of the right to health by recognising the right as a part of the fundamental right to life and issuing suitable directions to the State authorities for the discharge of their duties. The Court has recognised that maintenance of health is a most imperative constitutional goal whose realisation requires interaction of many social and economic factors.
39. In this context, we may quote with profit the following observations made by the Supreme Court in the case of Dr.Ashok v. Union of India and others, (1997)5 SCC 10 :
"Right to Life enshrined in Article 21 means right to have something more than survival and not mere existence or animal existence. It includes all those aspects of life which go to make a man's life meaningful , complete and worth living. As has been stated by this court in Maneka Gandhi's case (1978) 1 Supreme Court Cases 248, in the case of Board of Trustees vs. Dilip (1993) 1 Supreme Court Cases 124 and in the case of Ramasharan vs. Union of India 1989 Supp. (1) Supreme court Cases 251, that it would include all that gives meaning to a man's life, for example, his tradition, culture, heritage and protection of that heritage in its full measure. In still recent cases this Court has given liberal interpretation to the word 'life' in Article 21. And in the case of M.C.Mehta vs. Union of India & others, (1987) 4 Supreme Court Cases 463, while dealing with a Public Interest Petition relating to Ganga water pollution this Court has observed Page 83 of 89 C/WPPIL/47/2012 CAV JUDGEMENT that life, public health and ecology have priority over problems of unemployment and loss of revenue. In the United Nations Conference on the Human Environment held at Stockholm in 1972 it was stated that the protection and improvement of human environment is a major issue which affects the well-being of people and economic development through out the world and it is the urgent desire of the people of whole world and the duty of all Governments. It was also stated:-
" A point has been reached in history when we must shape our actions throughout the world with a more prudent care for their environmental consequences. Through ignorance or indifference we can do massive and irreversible harm to the earthly environment on which our life and well being depend. Conversely, through fuller knowledge and wiser action, we can achieve for ourselves and our posterity a better life in an environment more in keeping with human needs and hopes. There are broad vistas for the enhancement of environmental quality and the creation of a good life. What is needed is an enthusiastic but calm state of mind and intense but orderly work. for the purpose of attaining freedom in the world of nature a better environment. To defend and improve the human environment for present and future generations has become an imperative goad for mankind a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of Page 84 of 89 C/WPPIL/47/2012 CAV JUDGEMENT world-wide economic and social development."
What has been stated above in relation to the environmental hazards would apply with much greater force when it comes to health hazards. By giving an extended meaning to expression 'life' in Article 21 this court has brought health hazards due to pollution within it....."
40. We are confronted with a situation where on one hand the health of thousands of people would be at stake if they start residing within the vicinity of the landfill site vis-a-vis the right of the developers to develop their land at the place which is within 500 meters of the landfill site.
41. We are of the opinion that the health of the people at large is of paramount importance rather than the right of the members of the respondent no.11 Association to develop the land by putting up construction on the same. We are also conscious of the fact that all those who are desirous of developing their land are likely to be put in difficulty but, at the same time, we cannot permit the authorities to grant development permission ignoring the statutory restriction and the hard reality existing as on today. To permit development and construction near the landfill site will be nothing short of pushing people to live at such a place where there is a potential health hazard and more particularly when the law itself prohibits a landfill site within a radius of 500 meters from a human habitat.
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42. Our final conclusion is as under :
(1) The Ahmedabad Municipal Corporation committed
an error in granting permission in favour of the
respondent nos.1 and 2 for construction of the Paradise Park on the specious plea that since the area in question is falling within the residential zone such permission was granted. We are saying so, because even at the time of grant of such permission, the Corporation was aware that there does exist a landfill site adjoining the site where construction was to be made.
(2) The reliance placed by the Ahmedabad Municipal Corporation on the letter dated 21 st January 2011 of the Government of Gujarat, Forests and Environment Department, by which the Government asked the Corporation to consider the representation of the respondent nos.1 and 2 permitting them to go ahead with the project is also completely misplaced.
(3) The Government of Gujarat, Forests and Environment Department, vide letter dated 8th December 2010 addressed to the Corporation, had issued specific direction under Section 5 of the Environment (Protection) Act, 1986, to take the permission granted in favour of the Paradise Park in review and necessary action in that regard coupled with instructions to the local officers dealing with the grant of permission to the housing projects not to grant permission nearby the TSDF sites upto the distance of 500 meters and should not have once again asked the Corporation vide letter dated 21 st Page 86 of 89 C/WPPIL/47/2012 CAV JUDGEMENT January 2011 to consider the representation of the respondent nos.1 and 2 to go ahead with the construction on the ground that there were many residential projects near the TSDF sites already in existence.
(4) The respondent nos.1 and 2 cannot take advantage of such illegal permission granted by the Corporation dehors the statutory restriction as regards the distance to be maintained from the TSDF sites. If the respondent nos.1 and 2 are aggrieved in any manner or are of the view that they acted and proceeded with the construction on the strength of the permission which was granted by the Corporation, then it would be open for the respondent nos.1 and 2 to seek appropriate relief before the appropriate forum in accordance with law against the Corporation for damages. However, we make it clear that we have not gone into the question of damages and it would be for the appropriate forum to look into the same in accordance with law.
(5) The Ahmedabad Municipal Corporation shall not grant any permission to the housing projects nearby the TSDF sites within the radius of 500 meters in all parts of the city of Ahmedabad where such TSDF sites are located including the Building Use Permission to the respondent nos.1 and 2.
(6) In the report submitted by the experts, it has been stated that the respondent no.10 - Green Environment Service Cooperative Society has not provided vents in Cell No.3 due to which, during the inspection, the Page 87 of 89 C/WPPIL/47/2012 CAV JUDGEMENT technical team was unable to carry out any sampling test/analysis of the emission from vents in Cell No.3.
(7) The respondent no.10 is directed to comply with the shortcomings and the deficiencies pointed out by the Committee in its report within a period of four weeks from today and inform about such compliance to the Committee so that the Committee can once again make an inspection to ensure that their suggestions have been complied with.
(8) The authorities are also directed to chalk out a plan or a project by which all borewells in the area within 500 meters of the landfill site could be closed over a period of time and necessary arrangements are made for adequate supply of potable water through pipelines.
(9) The State Government, the Gujarat Pollution Control Board and the Ahmedabad Municipal Corporation shall, in consultation with each other, proceed to act in accordance with the decision taken in the meeting convened on 5th September 2011 as discussed in para 18 of this judgment.
43. With the above observations and directions, we dispose of the Writ Petition (PIL) No.47 of 2012. However, on the facts and in the circumstances of the case, there shall be no order as to costs.
(BHASKAR BHATTACHARYA, CJ.)
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C/WPPIL/47/2012 CAV JUDGEMENT
(J.B.PARDIWALA, J.)
Mohandas/Moin
FURTHER ORDER
After this order is passed, the learned counsel appearing on behalf of the Respondent Nos. 1,2 and 11 pray for stay of operation of our above order.
In view of what has been stated above, we find no reason to stay our order. The prayer is refused.
Certified copy if applied for, be given positively by tomorrow.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) Page 89 of 89