National Green Tribunal
Sarthak Tomar vs Government Of Madhya Pradesh Through ... on 3 August, 2023
Item No.01
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONAL BENCH, BHOPAL
(By Virtual Mode)
Original Application No.87/2022(CZ)
Dr. Sarthak Tomar Applicant(s)
Versus
Govt. of M.P. & Ors. Respondent(s)
Date of hearing: 03.08.2023
CORAM: HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
For Applicant(s) : Mr. Sarthak Tomar, Applicant
For Respondent(s): Mr. Sachin K. Verma, Standing Counsel for State
of M.P.
Mr. Rajendra Giri, Advocate for R-2
Ms. Parul Bhadoria, Advocate for MPPCB
Mr. Abhay Saraf, RO, MPPCB, Mandideep
ORDER
1. This Original Application (hereinafter referred to as 'OA') under Section 14 and 15 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010') has been filed by Mr. Sarthak Tomar, an advocate and an environmentalist who is concerned with protection of environment alleging that in Mandideep Industrial area, District Raisen in the State of Madhya Pradesh huge quantity of municipal solid waste has been dumped in an unscientific, illegal manner in utter violation of the provisions of Solid Waste Management Rules, 2016 (hereinafter referred to as 'SWM Rules, 2016') by Mandideep Municipal Council who is a local body responsible for its management, processing and disposal. The said solid waste comprises plastic and glass fiber, electronic waste, commercial and vegetable waste, industrial waste and processing products, dead bodies of animals and residential solid waste including 1 hazardous domestic waste. It has potential to cause environmental and health risk causing Mircro-plastics emissions; Leaching of rainwater polluting the ground and surface water; Runoff contamination of surface and ground water of adjoining farms and River Kaliyasot and River Betwa downhill; gradual and steady Methane emissions; emissions of NO2, SO2, CO, H2S, NH3 and volitile organic compounds (VOCs) from unregulated burning of the dumped waste; insect, animal vectors and pest infestation in and around the trenching area; increasing likelihood of fly-breeding and rodent infestation and in absence of fences and fire safety mechanisms there is a risk of accidental fire which may affect even the gas pipeline underneath.
2. Earlier also this issue was brought to the notice of this Tribunal in OA 162 of 2014(CZ), Dr. Subhash C. Pandey Vs. Union of India & Ors. which was disposed of finally by order dated 17.10.2016. Tribunal considered pleadings filed before it wherein it was shown that the issue of municipal solid waste would be taken up by authorities concerned after finalization of allotment of land for land fill site to deal with municipal solid waste at Mandideep as also for checking the pollution in River Betwa and Kaliyasot at Mandideep.
3. It was also said that construction of five STPs has started. Tribunal, in the above circumstances observed that no further order is required to be issued. OA was disposed of by above order dated 17.10.2016.
4. It appears that concerned authorities relived themselves by above disposal of OA without any further direction and did not take any further action in the matter showing no progress at all. Even today, the 2 municipal waste is being dumped in similar manner causing pollution as complained by applicant in OA.
5. Tribunal considered the complaint in its order dated 17.11.2022 and found it appropriate to obtain a factual report by constituting a Joint Committee comprising District Collector, Raisen or his representative; Chief Municipal Officer, Mandideep Municiapl Council, Mandideep or his representative and one representative from Madhya Pradesh Pollution Control Board (hereinafter referred to as 'MPPCB').
6. Committee visited site on 15.12.2022 and submitted report to the Tribunal on 18.12.2022 confirming complaint of applicant that solid waste of Mandideep industrial area is continuously being dumped unscientifically in an open land and even arrangement for segregation of waste and sanitary landfills are not adequate. Chief Municipal Officer, Municipal Council Mandideep sent a letter dated 28.11.2022 to Collector, Raisen for allotment of land for making it an authorized land fill but no such land was made available. The observation, conclusions and recommendations of Joint Committee, mentioned in report, are as under:
"Observations:
1. GPS location of the dumping site of Municipal Council Mandideep, District Raisen has been recorded using a mobile-based OPs application. The google map of the site and photographs taken during the inspection are enclosed as Annexure-01. The geographical coordinates of dumping site Mandideep are 23.10252 N, 77.529602 E and marked on google map. The dumping site is located near the industrial area Mandideep.
2. As informed, the site was around 18-20 years old dumping site existing in an area of more than 10.0 acres land of M.P. forest department but in column no. 12 of khasra AKVN where the complete municipal solid* wastes generating from the Mandideep city as well as industrial area is being dumped unscientifically manner.
Approximate 1000 Tons of Municipal waste has been dumped at this site.
3. As inform by the Sanitary inspector of Municipal Council Mandideep that total generation of municipal solid waste from 26 wards is about 31MT/day. Municipal council has adopted door to door collection. mechanism. Whole quantity is being dumped at the existing dumped 3 site with about 65% segregation at source and about 200 Kg/day plastic & other waste is being segregated at the site.
4. During the inspection it has been observed that Municipal Council Mandideep is not comply with the Solid Waste Management Rules, 2010 and dumping through Auto-Tipper. At the dumping site no barbed fencing around the site has been provided.
5. At the time of inspection burning of solid was not observed at the site by the committee members. However CMO of Municipal Council Mandideep has inform that during the summer season some anti- social elements/Rag pickers burned the solid waste which may causes the environmental issues in the area.
6. The Municipal Council Mandideep has provided material recovery facility and composing facility at the dumping site which was found operational during the inspection. This facilities is being operated by Ms Sarthak Samudayik Vikas avm Jankalyan Sansthan, Bhopal. The copy of agreement enclosed as a Annexure-02
7. Present site land is not in the possession of Municipal Council Mandideep for the scientifically disposal of municipal solid waste so that CMO Mandideep has requested to Collector Raisen for allotment of suitable site for the same. The copy of request letter is enclosed as Annexure-03.
8. There is no mechanism of fire safety arrangement at the MSW site but municipal council has fire fighting vehicles which are used at the time of fire dumping site. At the time of visit no burning of dumped waste was found. The ambient air quality of MSW site is being carried out by MPPCB and monitoring result are within limit as per prescribed norms. The monitoring report is enclosed as a Annexure-
04.
9. During the inspection there is no observation regarding micro plastic emission. At present there is no any storm water drain & leachate collection system for the rainy season. Hence due to runoff in rainy season contamination of surface and ground water of nearby areas cannot be denied. The nearby ground water samples is being analyzed by MPPCB and monitoring report is enclosed as Annexure-
05.
10. The odour nuisance is observed but not animal vectors and pest in infestation observed around the trenching area, as informed by the CMO Mandideep, dead body of animals including cows are being disposed in proper manner by using deep burial method and during the inspection no dead animals were found at the site. Conclusion:-
The solid waste of the Mandideep city is continuously being dumped unscientifically in the open land and the arrangements for segregation, processing of waste and sanitary landfills are not adequate and effective available at the site for the disposal of solid waste as mentioned in the SWM Rule 2016.
Recommendations:
1. According to the Solid Waste Management Rules 2016, the responsibility of collection, segregation, storage, transportation, treatment and disposal of Municipal solid waste lies with the local body hence Municipal Council, Mandideep should comply with the Solid Waste Management Rules 2016.
2. District administration should instruct to MP Forest department to permit the Municipal Council Mandideep regarding immediately 4 fencing of the present site to restrict the movement of animals, anti social elements at the dumping site and to develop necessary arrangement of MSW site as per the Solid Waste Management Rule, 2016 till the allotment & development of land.
3. Municipal council, Mandideep should take immediate initiation with District administration for the allotment of new landfill site & shall comply with all provisions of Solid Waste Management Rules 2016.
4. Municipal Council Mandideep take immediate action to prevent any unregulated burning of dumping waste at any point of time.
5. Municipal Council Mandideep shall do dense plantation all around the dumping site to prevent the odour nuisance."
7. Applicant filed objections dated 02.01.2023 to Committee's report stating that there is no observation regarding micro plastic emission;
observation that no animal vectors or dead body was found is not correct since evidence of decomposed animal dead body was presented alongwith OA vide annexure 11; and, water analysis report submitted by MPPCB was misleading in as much as prescribed standards taken by Committee are as per IS 10500 of 1991 though revised standards were made available vide IS 10500 of 2012 and those should have been applied; air analysis report is also inconclusive and misleading; Committee has not noted that dump site is at a hilltop and no recommendation has been made regarding cleaning up and restitution of hazardous dump site.
8. Report was considered by Tribunal on 10.01.2023. It directed MPPCB to visit the site, verify compliance of Environment Rules and in case there is non-compliance or violation of Environment Rules, take necessary remedial action in addition to imposing and realization of environmental compensation, in accordance with Rules.
9. Pursuant to order dated 10.01.2023, MPPCB, through its Regional Officer, Mandideep has submitted an inspection report after visiting the site on 25.01.2023 wherein observations regarding non-compliance of SWM Rules, 2016 by local body of Mandideep are reiterated as contained in earlier Joint Committee's Report. It is also said that for non- 5 compliance of SWM Rules, 2016, environmental compensation to the extent of Rs. 66 lakhs may be imposed upon local body. The observations and recommendations made in the above inspection report filed by MPPCB are as under:
"Observations of the inspection team are as follows:
GPS location of the dumping site of Municipal Council Mandideep, Distic Raisen has been recorded using a mobile-based GPS application. The google map of the site and photographs taken during the inspection are enclosed as Annexure-01. The geographical coordinates of dumping site Mandideep are 23.102628 N, 77.529574 E and marked on google map. The dumping site is located near the industrial area Mandideep.
As per Solid Waste Management Rule 2016 "Tentification of suitable sites for setting up solid waste processing facilities within 1 year from the date of notification of rules" but not complied till now. Present land is not in possession of Municipal Council Mandideep for the scientifically disposal of municipal solid waste. There is no common or standalone scientific sanitary landfill for disposal of residual waste from processing facilities as well as inert waste as per rules.
At present there is no storm water drain & leachate collection system for the rainy season. Hence due to runoff in rainy season contamination of surface and ground water of nearby areas cannot be denied.
The odour & fly nuisance is observed at the site. Around the dump site no barbed fencing or boundary wall is provided to restrict unwanted animals and human being from entering the dump site.
The Municipal Council Mandideep has provided material recovery facility and composting facility at the dumping site which was found operational during the inspection. This facilities is being operated by M/s Sarthak Samudayik Vikas am Jankalyan Sansthan, Bhopal. Material recovery facility provided at the site does not have adequate capacity for the handling generated waste and needs up-gradation. At the time of inspection burning of solid was observed at the site. There is no fire fighting arrangement/ facility at the MSW site but municipal council has fire fighting vehicles which are used at the time of fire at dumping site.
The Municipal Council has not established waste deposition centers for domestic hazardous waste as per rule.
Municipal solid wastes generating from the Mandideep city as well as industrial area is being dumped unscientifically manner, Approximate 1000 Tons of Municipal waste has been dumped at this site. No activities observed at the site for the bio-remediation of the dumped waste.
As per Solid Waste Management Rule 2016 ULBs are required to make an application in Form-I for grant of authorisation for setting up waste processing, treatment or disposal facility, if the volume of waste is exceeding five metric tones per day including sanitary landfills from the State Pollution Control Board or the Pollution Control Committee" But Municipal Council Mandideep has failed to comply.6
Recommendation:-
Based on the above observation it is stated that Municipal Council Mandideep is not fully complying provisions of Solid Waste Management Rule 2016. So Municipal Council Mandideep should be directed to comply the provisions of Solid Waste Management Rule 2016 and also Environmental Compensation should be levied as per Hon'ble NGT order dated 14/12/2020 in OA No. 606/2018 i.e. "41. In view of above, consistent with the directions referred to in Para 29 issued on 10.01.2020 in the case of UP, Punjab and Chandigarh which have also been repeated for other States in matters already dealt with, we direct.
a. In view of the fact that most of the statutory timelines have expired and directions of the Hon'ble Supreme Court and this Tribunal to comply with Solid Waste Management Rules, 2016 remain unexecuted, interim compensation scale is hereby laid down for continued failure after 31.03.2020. The compliance of the Rules requires taking of several steps mentioned in Rule 22 from Serial No. 1 to 10 (mentioned in para 12 above). Any such continued failure will result in liability of every Local Body to pay compensation at the rate of Rs. 10 lakh per month per Local Body for population of above 10 lakhs, Rs. 5 lakh per month per Local Body for population between 5 lakhs and 10 lakhs and Rs. 1 lakh per month per other Local Body from 01.04.2020 till compliance. If the Local Bodies are unable to bear financial burden, the liability will be of the State Governments with liberty to take remedial action against the erring Local Bodies. Apart from compensation, adverse entries must be made in the ACRs of the CEO of the said Local Bodies and other senior functionaries in Department of Urban Development etc. who are responsible for compliance of order of this Tribunal. Final compensation may be assessed and recovered by the State PCBs/PCCs in the light of Para 33 above within six months from today. CPCB may prepare a template and issue an appropriate direction to the State PCBs/PCCs for undertaking such an assessment in the light thereof within one month.
b. Legacy waste remediation was to 'commence' from 01.11.2019 in terms of order of this Tribunal dated 17.07.2019 in O.A. No. 519/2019 para 282 even though statutory timeline for 'completing' the said step is till 07.04.2021 (as per serial no. 11 in Rule 22), which direction remains unexecuted at most of the places and delay in clearing legacy waste is causing huge damage to environment in monetary terms as noted in para 33 above, pending assessment and recovery of such damage by the concerned State PCB within four months from today, continued failure of every Local Body on the subject of commencing the work of legacy waste sites remediation from 01.04.2020 till compliance will result in liability to pay compensation at the rate of Rs. 10 lakh per month per Local Body for population of above 10 lakhs, Rs. 5 lakh per month per Local Body for population between 5 lakhs and 10 lakhs and Rs. 1 lakh per month per other Local Body. If the Local Bodies are unable to bear financial burden, the liability will be of the State 7 Governments with liberty to take remedial action against the erring Local Bodies. Apart from compensation, adverse entries must be made in the ACRs of the CEO of the said Local Bodies and other senior functionaries in Department of Urban Development etc, who are responsible for compliance of order of this Tribunal. Final compensation may be assessed and recovered by the State PCBs/PCCs in the light of Para 33 above within six months from today."
Since the population of Municipal Council Mandideep is less than 5 lakhs. hence on the basis of the order passed by Hon'ble NGT in OA no. 606/2018. following Environmental Compensation may be imposed from 01704/2020 to till date:-
S. Point of Non- Penalty/Month Duration Total
No Compliance in Rs. in Month Penalty
.
1. Failure to comply 1.0 Lakh 33 33.0 Lakh
with Solid Waste
Management
Rules, 2016
2. Non remediation of 1.0 Lakh 33 33.0 Lakh
legacy waste
Total Penalty Rs. 66.0
Lakh
10. The matter was examined by Tribunal again on 13.02.2023. It considered complaint made by Applicant that no action has been taken by concerned authorities for proper disposal of solid waste in accordance with SWM Rules, 2016. Tribunal also considered the defense of local body that land was not made available by State. However, Tribunal did not agree with this defence and observed that it is an internal matter between the State and Municipal Corporation. Tribunal as also MPPCB are bound to enforce environment laws and take appropriate punitive and other action against the violator. Tribunal, therefore directed MPPCB to submit a further progress report.
11. An Action Taken Report dated 10.03.2023 has been submitted by MPPCB stating that it has issued a notice dated 06.03.2023 to Chief Municipal Officer, Nagar Palika Parishad, Mandideep directing it to pay 8 environmental compensation of Rs. 60 lakhs within 15 days from the date of notice.
12. Tribunal examined Action Taken Report dated 10.03.2023 on 13.03.2023 and directed MPPCB to finalize the matter of imposition of environmental compensation in accordance with law after giving opportunity of hearing to concerned parties.
13. Pursuant to said order dated 13.03.2023, today i.e. 03.08.2023 a status report has been filed by MPPCB stating that opportunity of hearing was granted to Chief Municipal Officer, Municipal Council, Mandideep. On the request of officials of local body, two months time was granted for payment of Rs. 60 lakhs of environment compensation. The copy of minutes of meeting dated 17.04.2023 is on record as annexure 2 to the Status report dated 03.08.2023 which shows that as per the statement of Municipal Council Officer, requisite funds for legacy waste and its management were sanctioned, tender proceedings were going on and land for solid waste management was also allotted.
14. In view of decision taken in meeting dated 17.04.2023, a letter dated 25.04.2023, annexure 3 to status report filed on 03.08.2023, was issued to Chief Municipal Officer, Nagar Palika Parishad, Mandideep.
15. However, fact remains, as we are also informed today that nothing has progressed further and dumping of solid waste is continuing in the same manner as had been done earlier. Applicant who is appearing in person stated that this dumping of solid waste in an illegal manner is going on for the last almost two decades. It is a continuous and day to day cause of action. Earlier, when Municipal Solid Wastes (Management and Handling) Rules, 2000 were applicable they were being breached with impunity by Municipal Council Mandideep by dumping and 9 unscientifically managing solid waste at hilltop at Mandideep Industrial Area and same violation is continuing till date and SWM Rules, 2016 are being violated without any remorse and hesitation.
16. Learned counsel appearing for Municipal Council stated that since land has not been allotted for setting up an authorized Land Fill, therefore dumping of solid waste in illegal manner is continuing. He said that responsibility of making the land available is of State and for this purpose up sought to rely on Rules 16 of SWM Rules, 2016 but we find that Rules 16 nowhere says what has been contended by learned counsel for Municipal Council Mandideep. On the contrary, Rules 16 prescribes duties of State Pollution Control Board or Pollution Control Committee and categorically says that enforcement of SWM Rules, 2016 is the responsibility of State Pollution Control Board or Pollution Control Committee which has to be enforced through local bodies in their respective jurisdiction. Further, implementation of SWM Rules, 2016 has to be reviewed at least twice a year in close coordination with concerned Directorate of Municipal Administration or Secretary in-charge of State Urban Development Department. There are other provisions in Rules 16 which emphasize more on implementation and enforcement of Rules 2016 in an effective manner by State Pollution Control Board through concerned local bodies.
17. Here we find that even State Pollution Control Board has failed in its performance of statutory duty, contemplated under Rules 16. Local body has miserably failed to act in accordance with provisions of SWM Rules, 2016 and the same are being breached with adamant attitude of not reforming the action by complying with said rules. The facts discussed above also show that earlier OA 162 of 2014 was disposed in October, 2016 when a stand was taken before Tribunal that steps for 10 allotment for land are being taken and Rules shall be implemented expeditiously but nothing was done and the first letter which has been placed before us issued by Municipal Council to Collector for allotment of land is dated 28.11.2022 which shows that for six years nothing was done despite a specific stand taken by this Tribunal and even that was violated.
18. Municipal Council, Mandideep is clearly guilty of violation of SWM Rules, 2016 which have been framed in exercise of powers under 3, 6 and 25 of Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act, 1986'). Section 15 of EP Act, 1986 says that whoever fails to comply with or contravenes any of the provisions of this Act or the rules made or orders for directions issued there under, shall, in respect of each such failure of contravention, be punishable with imprisonment for a term which may extend to five years or with fine which may extend to 1 lakh rupees or with both and in case the failure or contravention continues, with additional fine which may extend to 5,000 rupees for everyday during which such failure or contravention continues after conviction for first such failure or contravention.
19. Sub Section 2 of Section 15 provides, if the contravention continues beyond a period of one year after the date of conviction, offender shall be punishable with imprisonment for a term which may extend to for a period of seven years.
20. Section 16 deals with offences by companies and Section 17 deals with offences by Government Department.
21. Company means any body corporate and include a firm or other association or other individual and every person who is directly incharge and responsible to the company for conduct of its business is liable to be 11 prosecuted and punished for committing offence under Section 15 of EP Act, 1986.
22. Section 19 provides procedure for cognizance of an offence and says that no court shall take cognizance unless a complaint is made by Central Government or any authority or officer authorized on his behalf by that Government or any person who has given notice of not less than 60 days in the manner prescribed of the alleged offence and of his intention to make a complaint to the Central Government or the authority or officer authorized as aforesaid.
23. Learned counsel appearing for MPPCB informed that Central Government has authorized MPPCB officials to lodge complaint for taking cognizance of the offences under Water (Prevention & Control of Pollution) Act, 1974, Air (Prevention and Control Of Pollution) Act, 1981 and EP Act, 1986.
24. In the present case, Chief Municipal Officer, Municipal Council Mandideep is the officer responsible for business of corporate body and also head of department, hence he is liable for prosecution for committing an offence under Section 15 of EP Act, 1986. Moreover, we find that this offence is continuing for last more than a decade and hence now there is no reason as to why appropriate criminal and other proceeding should not be initiated against all defaulters/violators/offenders of Environmental Laws, and in particular EP Act, 1986.
25. In these circumstances, we direct Member Secretary, MPPCB to lodge a complaint before competent Court under Section 15 read with 19 of EP Act, 1986 against Chief Municipal Officer, Municipal Council Mandideep, District Raisen for his prosecution for committing offence under Section 15 of EP Act, 1986.
12
26. Besides, for committing continues violation of SWM Rues, 2016 and causing pollution, damaging environment, Municipal Council, Mandideep is also liable to pay environmental compensation on the principle of 'Polluters Pay'. MPPCB has imposed compensation of 60 lakhs upon Municipal Council, Mandideep but said amount has not been deposited till date. For the time being, we are confining quantum of computation of environmental compensation to the amount assessed by MPPCB but direct Member Secretary, MPPCB to immediately initiate proceedings for recovery of the said amount by taking all coersive measures, in accordance with law and ensure recovery of said amount within two months.
27. Municipal Council, Mandideep is further restrained from dumping/disposing/collecting/storing any solid waste/municipal solid waste in open land including the offending site in dispute, on and after 16.08.2023, and compliance of this order shall be ensured by Regional Officer, MPPCB, Mandideep and Collector, Raisen.
28. If they find any violation of above direction, besides other action as permissible under EP Act, 1986, they shall also initiate criminal prosecution against the offending persons and officers by taking steps for prosecution of concerned person(s) under Section 26 of NGT Act, 2010 read with Section 30 by filing complaint before concerned Magistrate without any further delay.
29. The amount of compensation as directed above shall be utilized for remediation/restoration/recovery of site in dispute which is causing damage to the environment as also for remediation of damaged environment, in accordance with the plan which shall be prepared by a Joint Committee comprising MPPCB, CPCB and Integrated Regional 13 Officer, MoEF&CC, Bhopal which shall be prepared within two months and thereafter be executed in next three months.
30. Compliance report of above directions shall be submitted by Member Secretary, MPPCB with Registrar of Central Zone, Bhopal Bench by 15.12.2023 who shall place the matter before the Bench, if any further order is required.
31. With aforesaid directions, this OA is disposed of.
32. Copy of this order be forwarded to Member Secretary, MPPCB, RO, Mandideep, Chief Municipal Officer, Municipal Council Mandideep, District Raisen, Collector and District Magistrate, Raisen, Secretary, Urban Development Department, State of Madhya Pradesh and Chief Secretary, State of Madhya Pradesh by e-mail for compliance.
Sudhir Agarwal, JM Dr. Afroz Ahmad, EM August 03, 2023 Original Application No.87/2022(CZ) N 14