National Green Tribunal
Jayaram Gouda S/O. Madavenkatappa ... vs The Union Of India Rep. By Its Secretary ... on 4 May, 2020
Author: K. Ramakrishnan
Bench: K. Ramakrishnan
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Appeal No. 44 of 2015(SZ)
(M.A.No.259 of 2015)
IN THE MATTER OF:
Jayaram Gouda,
S/o Madavenkatappa,
No.21, Dasegowdanpalaya 100 feet Road,
VI Block, BSK 6th Stage, Vidyapeeta Post,
Hobli, Bangalore-560004.
... Appellant(s)
With
1. Union of India,
Rep. By its Secretary to the Government,
Ministry of Environment and Forests & Climate Change,
6th Floor CGO Complex, Lodhi Road,
New Delhi.
2. Chairman,
Karnataka State Pollution Control Board,
Parisara Bhavan, Church Street,
Bangalore-560 001.
3. Chairman,
Karnataka State Environment Impact Assessment Authority,
7th Floor, M.S. Building, 4th Phase,
Bangalore-560 001.
4. The Special Commissioner,
(Solid Waste Management)
Bhurath Bangalore Mahanagara Palike,
Narasaimharaja Square,
Bangalore-560 002.
5. The Deputy Conservator of Forests,
Karnataka State Forest Department,
Bangalore Urban Division,
Bangalore.
...Respondent(s)
For Appellant(s): M/s. A. Yogeswaran
For Respondent(s): M/s. M. Sumathi for R1
M/s. R. Thirunavukarasu for R2
M/s. Devaraj Ashok for R3 and R5
M/s. T.V. Sekar for R4
Original Application No. 195 of 2017(SZ)
IN THE MATTER OF:
Jayaram Gouda,
S/o Madavenkatappa,
No.21, Dasegowdanpalaya 100 feet Road,
VI Block, BSK 6th Stage, Vidyapeeta Post,
Hobli, Bangalore-560004. ... Appellant(s)
With
1. Union of India,
Rep. by its Secretary to the Government,
Ministry of Environment and Forests & Climate Change,
6th Floor CGO Complex, Lodhi Road,
New Delhi.
2. Chairman,
Karnataka State Pollution Control Board,
Parisara Bhavan, Church Street,
Bangalore-560 001.
3. The Special Commissioner,
(Solid Waste Management)
Bhurath Bangalore Mahanagara Palike,
Narasaimharaja Square,
Bangalore-560 002.
...Respondent(s)
Judgment Reserved on: 08th February, 2020
Order/ Judgment pronounced on: 04th May, 2020
CORAM:
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE MR. SAIBAL DASGUPTA, EXPERT MEMBER
For Applicant(s): M/s. A. Yogeswaran
For Respondent(s): M/s. M. Sumathi for R1
M/s. R. Thirunavukarasu for R2
M/s. T.V. Sekar for R3
Whether the Judgement is allowed to be published on the Internet - Yes / No
Whether the Judgement is to be published in the All India NGT Reporter - Yes / No
.
ORDER / JUDGMENT JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER Appeal No.44 of 2015 was filed by the appellant challenging the Environmental Clearance dated 19.06.2015 granted by State Environment Impact Assessment Authority (SEIAA), Karnataka to the fourth respondent for establishment of Common Municipal Solid Waste Management Plant.
2) O.A.No.195 of 2017 was filed by the same appellant as applicant challenging the Ex-post facto combined authorisation cum consent order No.PCB 178 WMC2016/H-167 dated 07.06.2017 issued by the Karnataka State Pollution Control Board (KSPCB) in favour of third respondent in that case namely Bruhat Bangalore Mahanagara Palike.
3) The proposal of establishment of Common Municipal Solid Waste Management Plant was desired to be established at C.A.No.5, BSK 6th Stage, V Block holding Survey No.16/1 and 21/1, 21/2 of Lingadheeranahalli Kengeri Hobli, Bangalore South Taluk in an area having an extent of 9.28 Acres of land. The allegation in both the appeal as well as the application against the establishment of the plant are more or less same. So, they are extracted in common for convenient sake.
4) It is alleged in the appeal memorandum as well as in the application that under Environment Impact Assessment (EIA) Notification, 2006 dated 14.09.2006 under Schedule I, the Waste Management Plant cannot be started without obtaining prior Environmental Clearance and also without obtaining mandatory authorisation under Rule 6(3) of the Municipal Solid Wastes (Management and Handling) Rules, 2000, consent to establish under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, clearance under the Forest (Conservation) Act, 1980. When the appellant came to know about the establishment of the Plant without getting necessary prior Environmental Clearance, he filed O.A.No.110 of 2015 before this Tribunal against the conduct of unlawful public hearing which was scheduled to be conducted as part of the procedure for granting Environmental Clearance for this project. The matter was admitted on 29.05.2015 and after hearing the counsel for the appellant, the Tribunal has directed status quo to be maintained and stayed all further activities at the site. The above order was communicated to the respondents by the learned counsel for the appellant. But in spite of the same, they failed to comply with the orders of this Tribunal.
5) Subsequent to the illegal conduct of public hearing in clear violation of the orders of this Tribunal during the pendency of O.A.No.110 of 2015, Environmental Clearance was granted to the Plant on 19.06.2015 which according to the appellant is in fragrant violation of the provisions under EIA Notification, 2006. So, according to the appellant, Environmental Clearance granted is illegal and non-est in the eye of law. When this was brought to the notice of this Tribunal while O.A.No.110 of 2015 had come up for hearing, the Tribunal granted permission to the appellant to withdraw the application O.A.No.110 of 2015 with liberty to challenge the Environmental Clearance by filing an appeal under Section 16(h) of the National Green Tribunal Act, 2010 and hence the appeal is filed.
6) When the Pollution Control Board granted authorisation and Consent to Establish and Operation, after issuance of the Environmental Clearance, against the provisions of the Act , the same was challenged by the appellant herein, by filing O.A.No.195 of 2019 with more or less similar allegations and grounds alleged by him in the appeal.
7) The grounds on which the Environmental Clearance as well as issuance of Consent to Establish / Authorisation / Operation was challenged by the appellant are as follows:
(a) As per EIA Notification, 2006, prior Environmental Clearance has to be obtained before starting construction of the Common Waste Management Plant. But in this case, the construction of the facility was started during August, 2014 against the protest made by the local people.
Thereafter, they applied for Environmental Clearance only on 31.10.2014 and only thereafter, Terms of Reference (TOR) was issued on 01.12.2014, on the basis of which Environment Impact Assessment Report was prepared by the project proponent namely Bruhat Bangalore Mahanagara Palike and thereafter, Ex-post facto Environmental Clearance was granted on 19.06.2015 on the basis of the recommendations given by State Expert Appraisal Committee (SEAC) by State Environment Impact Assessment Authority (SEIAA) in their 140th meeting. In the meeting, the State Expert Appraisal Committee (SEAC) made some observations that the preliminary work for the project has been commenced without obtaining prior Environmental Clearance and in the public hearing, the public had opposed the project. But ignoring these facts without application of mind the State Expert Appraisal Committed (SEAC) had recommended the project, on the basis of which SEIAA had issued the impugned Environmental Clearance.
(b) Further, since the construction of the project was started without obtaining Environmental Clearance, the authority was not justified in giving Ex-post facto clearance which is unknown to law. On that ground alone, the same is liable to be set aside.
(c) The siting criteria for establishing Waste Management Plant has not been considered by the authorities. In fact, there are residential houses within the prohibited distance of 300 meters and there is no buffer zone provided even within the Plant area as the entire area has been covered by the building. Further, establishing a Waste Management Plant in the residential area will cause health hazard and as for as possible the siting criteria of such Plant must take note of the factum of existence of residential building nearby and sufficient space must be provided from the boundary of the habitat. In this case it is intended to be established within the residential plots and the plot allotted to the unit by Bangalore Development Authority as per the master plan was not set apart for setting up any Waste Management Plant. But it was intended to be used for common entertainment area by the resident of the layouts. This aspect has not been considered by the authorities before recommending the project in that area.
(d) Further, there was suppression of material facts in the application filed by the project proponent while applying for the clearance. They have not mentioned about the existence of BM Kaval reserve forest which is situated just abetting the boundary of the Plant area. This aspect has not been mentioned in the application at all. This was a material suppression on the part of the project proponent which itself will be sufficient to set aside the Environmental Clearance granted.
(e) The existence of reserve forest and impact of the establishment of Waste Management Plant near the reserve forest has not been considered by the authorities at all. Though such thing was raised at the time of public hearing, nothing was mentioned about the same by the State Expert Appraisal Committee (SEAC) before recommending the project. Further, the Forest Department had objected to the establishment of this Plant in that area by sending a communication to the project proponent and requesting them to stop further work and they can proceed with the work only after getting necessary permission from the Wildlife Department or from the Forest Department. Further, earlier the Karnataka State Pollution Control Board, while considering the application for Consent to Establish by the project proponent, had inspected the area in question and rejected the proposal on the ground that it is not suitable for establishing the Waste Management Plant and this aspect has not been considered by the State Expert Appraisal Committee (SEAC) before recommending the project. If a proper evaluation on the environmental impact of this project had been conducted then the State Expert Appraisal Committee (SEAC) would not have recommended the project. Further, the State Environment Impact Assessment Authority (SEIAA) also did not consider these facts before granting clearance for this project.
(f) Further, there are other ecologically sensitive areas like National Park, Birds Sanctuary, Lake etc, which are situated within 10 Kms radius and impact of this project on these ecologically sensitive areas were not even considered by the authorities.
(g) Further, the comprehensive primary base line data regarding the pollution index was assessed only for a period of one month which is not sufficient. Under the EIA Notification, 2006, primary base line data of at least one season should have been provided to assess the pollution index that is likely to cause on account of operation of this unit in this area. This is also in fragrant violation of the EIA Notification, 2006 and guidelines given in this regard by the Ministry of Environment, Forest & Climate Change (MoEF & CC).
(h) Further, the request for providing only the comprehensive primary base line data for one month has been accepted by the State Expert Appraisal Committee on condition that it is necessary in the public interest that such a Plant has to be established and on that ground it was waived which is unsustainable in law. Though, there was a recommendation to provide comprehensive primary base line data for a season, subsequently, such an exercise has not been done before SEIAA, considering the same and granting Environmental Clearance.
(i) Learned counsel appearing for the appellant had relied on the decisions of the Hon'ble Apex Court in Common Cause Vs. Union of India (2017 (9) SCC 499) and in DLF Universal limited and another Vs. Director Town and Country Planning (2010 (14) SCC 1) in support of his case.
8) Fourth respondent filed their counter statement contending as follows: It is alleged in the counter statement that it is a Government body, Bruhat Bengaluru Mahanagara Palike (BBMP) having its office at Corporation Circle, Hudson Circle, Bangalore-560 002, Karnataka. They denied the allegations that State Environment Impact Assessment Authority (SEIAA) has granted Environmental Clearance (EC) in violation of Environment Impact Assessment (EIA) Notification, 2006 and in violation of Municipal Solid Wastes (Management and Handling) Rules, 2000, Water (Prevention and Control of Pollution) Act, 1974 (Water Act), Air (Prevention and Control of Pollution) Act, 1981 (Air Act) and the Forest (Conservation) Act, 1980 (Forest Act). They also contended that the appeal itself is not maintainable as there is a Writ Petition as W.P.No.24739 of 2012 pending before the Hon'ble High Court of Karnataka and the Division Bench of the Hon'ble High Court of Karnataka is monitoring the establishment of Waste Management Plant in Bangalore City and establishment of this Waste Management Plant was also monitored by the Hon'ble High Court of Karnataka and there was an order passed by the Hon'ble High Court that anybody having any objection regarding the establishment of Solid Waste Management Plant has to approach the Hon'ble High Court in the same Writ Petition and separate proceedings in respect of the same before different forum was restrained. The Hon'ble High Court in that matter was monitoring the establishment of the plant by getting action plan and also implementation of the action plan and asking for reports about the implementation of the same and necessary directions have been given for this purpose. So, the appeal before this Tribunal against grant of Environmental Clearance is not maintainable and the same is liable to be dismissed in limini.
9) Bengaluru City approximately generates 4000 Metric Tons Per Day (MTPD) of Municipal Solid Waste (MSW). Traditionally the said 4000 MTPD of MSW was disposed of in open land-fills in various villages in the vicinity of the urban agglomeration leading to numerous protests by the villagers and people in the vicinity. This issue ultimately led to the Hon'ble High Court of Karnataka taking cognizance of the situation in a Public Interest Litigation mentioned above and was taking supervisory role in giving necessary directions to the local bodies to implement the Solid Waste Management Rules in an environmental friendly and more scientific manner. Karnataka is the only State and Bruhat Bengaluru Mahanagara Palike (BBMP) is the only local body which has undertaken definite measures for scientific disposal of municipal solid waste. They established six new waste compost plants in six distinct locations around the city with a cumulative capacity of 1800 MTPD. The facility that has been questioned in this appeal is one of such facility. The waste compost facility used is a cutting edge technology for converting the municipal waste to compost. The entire process is undertaken in a closed shed facility and is conducted in a manner that is least intrusive, non-percolative and also odourless. The process of waste to compost, in juxtaposition to the land fill methodology yields innumerable benefits to the community and to the environment as a whole. The traditional land fills leads to contamination of ground water through seepage and percolation thereby affecting larger community around such land fills. However, the waste to compost facility that has been developed by BBMP apart from being odourless follows a process whereby no percolation of pollutants and contamination of underground water occurs. The State of Karnataka is conscious of the environmental problems of the open land fills and the Government has decided to have decentralized, scientifically efficient and environmentally sound and least intrusive process of conversion of waste to compost to be implemented and necessary policy decision taken in this regard. On the basis of the policy decision, executive directions have been given and huge amount has been granted for implementation of the same as well.
10) The Bengaluru Development Authority (BDA) had granted specific plan for the purpose of providing waste management plant after revising the Master Plan 2015. Since this has been allotted by BDA for a specific purpose, the selection of land cannot be challenged. There is no violation of law or statutory rules or regulations in establishment of the same. There was no suppression of any material fact as well. By order dated 23.09.2014 in W.P.No.24739 of 2012, the Hon'ble High Court of Karnataka had restrained other authorities from entertaining any complaint regarding establishment of waste management facility by BBMP and those who want to challenge the same has to intervene in the above writ petition. Several directions in this regard have been issued in the writ petition by Special Bench constituted for this purpose. Further, another application was filed as O.A.No.237 of 2014 before this Tribunal in respect of the same facility and that application has not been entertained by this Tribunal on the ground of pendency of similar matter before the Hon'ble High Court of Karnataka.
11) Further in W.P.No.28843 of 2015, somebody has challenged the establishment of Waste Disposal Facility in this area and Hon'ble High Court of Karnataka has disposed of that writ petition observing as follows:
" Moreover, a full-fledged layout, that is, Banashankari sixth stage has come up. We are informed by Mr. Y.H. Vijaykumar, learned additional government advocate that there are about 25,000 houses sited in sixth stage of Banashankari layout.
If there could be a full-fledged layout, naturally, there must be a solid waste process unit.
We do not think that the Bruhat Bengaluru Mahanagar Palike has committed any mistake in establishing a solid waste processing unit for processing the garbage of the area and that writ petition was rejected."
They have made earnest attempt to dispose of the solid waste generated in a more scientific manner. Further, the Hon'ble Principal Bench of National Green Tribunal at New Delhi has also issued directions in various matters for monitoring the implementation of Solid Waste Management Rules in the States and necessary directions have been issued to the local bodies to implement the rules in letter and spirit. After considering the Environment Impact Assessment (EIA) report submitted by fourth respondent, the State Expert Appraisal Committee (SEAC) had considered the same and recommended the project and on that basis State Environment Impact Assessment Authority (SEIAA) had issued the Environmental Clearance. The work in respect of Waste Disposal Facility has commenced in furtherance of the directions issued by the Hon'ble High Court of Karnataka in W.P.No.24739 of 2012 and authorisation granted by the State Pollution Control Board for establishment of this project on 10.10.2014. The applicant had obtained an order in O.A.No.110 of 2015 on 29.05.2015 which was received by them on 29.07.2015 and thereafter, the activities have been stopped and again the work was stopped on the basis of the order of this Tribunal dated 17.08.2015. Before starting the project, necessary meetings have been held by different Departments in selecting the area for disposal of waste as per the rules. They have not received the order dated 29.05.2015 at the time when the public hearing was conducted. Consent to Establish was applied on 04.07.2014, 18.07.2014 and 21.08.2014 and the same was issued on 10.10.2014 and only thereafter, the construction activities have commenced. The State Expert Appraisal Committee (SEAC) had considered all the aspects including water pollution, air pollution, industrial processes, health, forestry, landscaping, agriculture and geo-hydrologist etc., and thereafter a detailed study was conducted regarding its impact within 10 km radius from the project site and only after considering the impact on the eco-sensitive area, recommendation has been made on the basis of which the Environmental Clearance has been issued. The concerns of the Forest Department has been taken into account by the relevant authorities at the time of granting clearance and the clearance was granted by Forest and Ecology Department, Government of Karnataka and no further clearance from any other authorities was required. Further, the Waste Disposal Facility does not fall under category A as per Ministry of Environment Forest & Climate Change (MoEF & CC) Notification SO 1598 (E) dated 25.06.2014 vide amended EIA Notification, 2006 as the same is beyond 5 km from any protected area, critically polluted area, eco-sensitive areas or inter-state boundaries or international boundaries as denoted in the notification. EIA Notification, 2006 was amended by subsequent Notification SO 1598 (E) dated 25.06.2014 issued by the Ministry of Environment and Forests, whereby the said limit of 10 km in respect of category B projects was reduced to 5 km, for the project to be appraised as a Category A project. The authorization issued by second respondent expired and thereafter, it was extended by their letter dated 12.06.2015. After considering the proposal on all relevant factors, second respondent had issued Consent for Establishment. So, there is no violation of any of the rules and there is no legal ground for setting aside the Environmental Clearance granted. Further, there is no suppression of any material facts, the area of forest was also considered by the authorities before granting Environmental Clearance. So, according to them, there is no merit in the appeal and they prayed for dismissal of the appeal.
12) Third respondent the State Environment Impact Assessment Authority (SEIAA) filed counter statement contending that the appeal is not maintainable. Scientific management of municipal solid waste is a mandatory task of local bodies, which are bound to comply with the norms of Municipal Solid Waste (Management & Handling) Rules, 2000. The proposal has been considered on the sustainability criteria and on the principle that the interest of majority should prevail. The State Expert Appraisal Committee had considered the question of baseline data which relates to the pollution index in that area and request for short term baseline data was accepted with suggestion for re-examination and to ensure that corrective measures if any, required before commissioning of the facility have to be provided. The project proponent had prepared EIA report based on the primary baseline data collected over a period of four weeks and secondary data on meteorology, geology, geo-morphology, drainage, groundwater scenario etc., to identify and estimate the potential impact of the proposed activity on the environment. The same has been considered by third respondent and only thereafter, the same has been granted.
13) Further, as per Notification No.S.O.1599 (E) dated 25.07.2014, it has been reiterated that " any project or activity specified in category 'B' will be appraised at the Central level as Category 'A', if located in whole or in part within 5 km from the boundary of: (i) Protected areas notified under the Wildlife (Protection) Act, 1972; (ii) Critically polluted areas as identified by the Central Pollution Control Board constituted under the Water (Prevention and Control of Pollution) Act, 1974 from time to time; (iii) Eco- sensitive areas as notified under sub-section (2) of section 3 of the Environment (Protection) Act, 1986 and (iv) Inter- State boundaries and international boundaries; provided that for River Valley Projects specified in item 1(c), Thermal Power Plants specified in item I (d), Industrial estates / parks / complexes/ areas, export processing zones (EPZs), Special Economic Zones (SEZs), biotech parks, leather complexes specified in item 7(c) and common hazardous waste treatment, storage and disposal facilities (TSDFs) specified in item 7(d), the appraisal shall be made at Central level even if located within 10 km."
All the provisions have been properly considered and only after considering the performance of this project, necessary Terms of Reference have been issued. Based on which, the Environment Impact Assessment (EIA) report was submitted by the project proponent and that has been considered by the State Expert Appraisal Committee (SEAC) in accordance with law and necessary recommendations have been issued. On the basis of which the State Environment Impact Assessment Authority (SEIAA) had issued the Environmental Clearance. The State Expert Appraisal Committee (SEAC) had not made any observations on the shortcomings as alleged in the appeal memorandum. Public hearing was conducted and objections raised in the public hearing were considered before making the recommendations. No permission from National Board of Wildlife is required as the project site in question do not attract General Condition of the EIA Notification, 2006 amended from time to time. According to third respondent, there is no merit in the appeal and prayed for dismissal of the appeal.
14) Fifth respondent has filed counter statement contending that they have nothing to do with the issuance of Environmental Clearance. The State Expert Appraisal Committee (SEAC) and State Environment Impact Assessment Authority (SEIAA) have considered all the environmental issues before passing the order. The appellant will have to satisfy this Tribunal regarding the grounds as alleged in the appeal. This respondent has also sought information from fourth respondent for verification and scrutiny of the project. The Range Forest Officer, Kaggalipura vide letter dated 11.08.2014 informed the Deputy Conservator of Forest, Bangalore UrbanDivision that on receipt of a complaint from one B.M. Shivakumar, President of Nayaprakash Narayan Vichara Vedike, he had visited the disputed spot and found that the land in which the project for establishment of Municipal Solid Waste Processing Unit by fourth respondent is 5 meters away from B.M. Kaval Forest boundary, 2 Kilometres away from Turahalli State Forest Land and 1.5 km away from Turahalli Reserved Forest Area. A mahazar has also been prepared to this effect. It is also found that establishment of waste management processing unit may have adverse impact on wildlife and forest area. The concerned authorities have not produced any relevant document before fifth respondent to start the said project work. On the same day, the Deputy Conservator of Forest had also sent a letter to the Assistant Executive Engineer, BBMP, Kengeri Sub- Division, Bangalore and directed him to produce all records pertaining to the proposed project for establishment and also informed the concerned officer to stop all activities until they obtain a No Objection Certificate from the Forest Department. It was also informed that the construction work for establishment of waste management processing unit and all activities should be temporarily stopped in the lands adjoining the forest area and to apply for No Objection Certificate after providing complete information. Fifth respondent is not responsible for issuance of Environmental Clearance and no relief has been claimed against fifth respondent. So, they prayed for dismissal of the appeal.
15) The appellant filed rejoinder denying the allegations made and reiterating his contentions in the appeal memorandum. He had also contended that the Hon'ble High Court of Karnataka has not given any permission to fourth respondent to establish Common Waste Management Facility against the rules. They only insisted that they must provide Waste Management Facility to manage and dispose of the waste generated in the City in accordance with the rules provided therein. Further, there was no buffer zone provided as required under the rules. The existence of houses very close to the Waste Management Facility have not been disclosed by fourth respondent and that aspect has not been considered by the State Expert Appraisal Committee (SEAC) or State Environment Impact Assessment Authority (SEIAA) before issuing the Environmental Clearance. They also failed to note the fact that prior Environmental Clearance is required before starting the work. But in this case, the work was started before getting Environmental Clearance and what was granted is Ex post facto clearance which is not permissible under law.
16) O.A.No.195 of 2017 was filed by the same appellant against the grant of Consent to Establish dated 07.07.2017 as even prior to that the Waste Management Facility was established without getting clearance. They also failed to note the fact that earlier the same State Pollution Control Board had rejected this area stating that it is not fit for establishing the Waste Management Facility as it is situated near the residential houses and human habitation and there is possibility of pollution being caused if such Waste Management Facility is established in that area. It is not known as to how they changed their view and issued the Consent to Establish thereafter. So, according to them, the Ex post facto Consent to Establish granted is against law and on that ground the same is liable to be set aside.
17) Respondents have filed a memo stating that they are adopting the contention raised by them in the counter statements filed by them in Appeal No.44 of 2015 in respect of the grounds alleged in the application. They also contended that the application of the nature is not maintainable before this Tribunal.
18) When the appellant felt that the orders of this Tribunal have been violated, he filed an application as M.A.No.259 of 2015 for taking Contempt proceedings against the officials of fourth respondent and a direction given to the official of fourth respondent to appear before this Tribunal. This was challenged by fourth respondent before the Hon'ble High Court of Karnataka by filing Writ Petition as W.P.No.54409 of 2015 and the proceedings and action pursuant to the order was stayed.
19) The Points that arise for consideration are:
(1) Whether there was a suppression of material fact committed by fourth respondent while applying for Environmental Clearance in Form-I ?
(2) Whether the State Expert Appraisal Committee (SEAC) as well as the State Environment Impact Assessment Authority (SEIAA) were justified in ignoring the presence of eco-sensitive area within the prohibited distance before issuing the Environmental Clearance ?
(3) Whether the Environmental Clearance granted is liable to be set aside for any of the reasons mentioned in the appeal memorandum ?
(4) Whether if for any reason this Tribunal found that the Environmental Clearance granted is not legal, then what is the remedial measures that can be adopted by the Tribunal to sustain the facility in that area?
(5) Whether O.A.No.195 of 2015 is maintainable?
(6) Whether the Consent to Establish granted is liable to be set aside for any of the reasons stated in the petition ?
(7) What are the relief and costs ?
20) Points: 5 and 6: Learned counsel appearing for the appellant submitted that Ex-Post Facto Clearance cannot be granted under law and the Consent to Establish granted is not proper. Solid waste management facility itself should not have been started before getting prior Environmental Clearance and only thereafter, Consent to Establish should have been granted.
21) On the other hand, learned counsel appearing for fourth respondent and learned counsel appearing for the State Environment Impact Assessment Authority and State Pollution Control Board submitted that the application is not maintainable and it is an appealable order.
22) It may be mentioned here that granting or rejection of Consent to Establish or Consent to Operate under Section25 of the Water (Prevention and Control of Pollution) Act, 1974 is appealable before the Appellate Authority under Section 28 of the Water (Prevention and Control of Pollution) Act, 1974. Only the order of Appellate Authority is appealable before this Tribunal under Section 33-B of Water (Prevention and Control of Pollution) Act and Section 16 of National Green Tribunal Act, 2010. Merely because, there was no Appellate Authority constituted is not a ground for the applicant to approach this Tribunal directly by filing an application under Section 14 of the National Green Tribunal Act. The remedy of the applicant is to approach the Hon'ble High Court of Karnataka under Article 226 of the Constitution of India if the Appellate Authority has not been constituted to challenge the order passed by the State Pollution Control Board. This was so held in the decision reported in Tamil Nadu Pollution Control Board Vs. Sterlite Industries (I) Ltd. and others in Civil Appeal Nos.4763- 4764 of 2013 dated 18.02.2019 (2019 SCC online SC 221). So, the application challenging the issuance of Consent to Establish is not maintainable under Section 14, 15 read with Section 18 of the National Green Tribunal Act, 2010 and on that ground the application is liable to be dismissed. The points No. 5 and 6 are answered accordingly.
23) Points 1 to 4: Learned counsel appearing for the appellant/ applicant opposed the grant of Environmental Clearance on the ground that it was an Ex-Post Facto Clearance which is not valid in law. There is suppression of material fact regarding the existence of BM Kaval reserve forest near the plant area and also other ecologically sensitive areas and these facts have not been reflected in the Environment Impact Assessment report submitted by the project proponent so as to enable the Expert Appraisal Committee to consider the impact of the plant on these ecologically sensitive areas before recommending the project. Further, the Forest Department had opposed the establishing of this unit and they informed fourth respondent that without getting Forest Clearance or No Objection Certificate from the Forest Department work should not be proceeded with. Further, the State Pollution Control Board had earlier rejected the proposal for establishment of Waste Management Plant in this area and these aspects have not been considered either by the State Expert Appraisal Committee or State Environment Impact Assessment Authority (SEIAA) before granting the clearance. Further, the primary data collected is only for a period of one month which is against the rules as minimum one season primary data ought to have been collected to assess the pollution impact of the project on environment. They also failed to note the fact that there exists residential houses and no buffer zone was provided and also establishing the Waste Management Plant in a residential area will have great health hazard and this aspect has not been properly considered. Further, the construction work was proceeded with against the orders passed by this Tribunal in O.A.No.110 of 2015 and also ignoring the stay order passed by this Tribunal in this appeal. So, according to him, the grant of Environmental Clearance is against law and same is liable to be set aside.
24) On the other hand, learned counsel appearing for State Environment Impact Assessment Authority (SEIAA) as well as learned counsel appearing for fourth respondent argued that the appeal itself is not maintainable in view of the fact that the establishment of this project was monitored by the Hon'ble High Court of Karnataka in a public interest litigation and as such it cannot be said that the Hon'ble High Court has not considered the environmental impact of establishment of such plant in this area. Further, all the authorities have properly considered the impact of the plant and rightly granted the clearance.
25) As regards the maintainability of this appeal is concerned, even in the Writ Petition filed as W.P.No.54409 of 2015 (GM-POL) by fourth respondent as Bruhat Bengaluru Mahanagar Palike Vs. Jayaram Gouda and others dated 26.04.2017 against the interim order passed by this Tribunal, it has been held that appeal against the grant of Environmental Clearance is maintainable before this Tribunal under Section 16 of the National Green Tribunal Act, 2010 and pendency of any Public Interest Litigation before the Hon'ble High Court of Karnataka will not affect the jurisdiction of this Tribunal in considering the appeal and passing appropriate orders in accordance with law and directed this Tribunal to dispose of the Appeal No.44 of 2015 in accordance with law with following directions:
"Taking all these facts, circumstances and aspects into pragmatic consideration and to meet the ends of justice, we pass the following order:
(i) The BBMP and all the other parties shall place the records before the NGT on 15.05.2017. We request the NGT to take up the Appeal No.44 of 2015 on day-to-day basis and dispose it of within two weeks from 15.05.2017.
(ii) No opinion whatsoever is expressed on the sustainability or otherwise of the environmental clearance order, dated 09.11.2015.
(iii) The contempt proceedings in M.A.No.259 of 2015 shall be kept in abeyance until the disposal of the main matter i.e., 'Appeal No.44 of 2015'. Their revival/ dropping and/ or fresh initiation would obviously depend upon the outcome of Appeal No.44 of 2015.
(iv) The on-going activities of the Project in question are permitted to be continued but subject to the outcome of Appeal No.44 of 2015".
So, it is clear from the above order that the legality or otherwise of the establishment of the unit by fourth respondent will be subject to the result of this appeal and any direction given by the Hon'ble High Court of Karnataka in the Public Interest Litigation will not affect the jurisdiction of this tribunal to decide the legality or otherwise of the Environmental Clearance granted to fourth respondent by State Environmental Impact Assessment Authority (SEIAA), Karnataka for establishment of this disputed unit. So, the submission made by learned counsel for fourth respondent that the establishment of this unit was on the basis of the directions of the Hon'ble High Court of Karnataka in the Public Interest Litigation and this Tribunal cannot consider the validity of the establishment of this unit in this proceedings cannot be sustained.
26) Further, in the decision reported in Hanuman Laximan Aroskar Vs. Union of India and other connected cases reported in 2019 SCC Online SC 441, the Hon'ble Apex Court had considered the power of this Tribunal under Section 16 of the National Green Tribunal (NGT) Act while deciding the appeals arising out of the order granting Environmental Clearance. It has been held in that decision that the NGT Act provides for the constitution of a Tribunal consisting both of judicial and expert members. The mix of judicial and technical members envisaged by the statute is for the reason that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment. In order to be eligible for appointment as an expert member, a person must fulfil the following qualifications prescribed in Section 5(2):
"(2) A person shall not be qualified for appointment as an Expert Member, unless he,
(a) has a degree in Master of Science (in physical sciences or life sciences) with a Doctorate degree or Master of Engineering or Master of Technology and has an experience of fifteen years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management, biological diversity management and forest conservation) in a reputed National level institution; or
(b) has administrative experience of fifteen years including experience of five years in dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution. "
The NGT is an expert adjudicatory body on the environment. In two of its previous decisions, the NGT has shown the path along with which it must traverse in arriving at its decisions. In Save Mon Region Federation Vs. Union of India, the grant of an EC to a 780 Megawatts Hydroelectric Project in Tawang district of Arunachal Pradesh was challenged. The NGT framed the question before it in broad terms:
"....the material issue, therefore, that needs to be answered in the present Appeal is as to whether the process of grant of prior EC to the project in question suffers from vice of fault scoping process or not. "
Having reviewed the information furnished in Form 1 by the project proponent as well as the multiple reports on record on the bird species involved in the site or the proposed project, the NGT held that facts material to the case were not present before the EAC and the consequent ' vacuum in the EIA report ' lead to aberrations in the appraisal process conducted by it. Suspending the EC granted to the project, the NGT accepted the contention which was urged before it that the NGT has the 'authority to take an appropriate decision on the facts placed before it' and 'set aside or suspend the EC'. Similarly, in Shreeranganathan K.P. Vs. Union of India, the grant of an EC to the KGS Aranmula International Airport Project was challenged. The NGT found fault with the process leading up to the grant of the EC since sector specific issues had not been dealt with. The NGT extensively reviewed the information submitted by the project proponent in Form 1, the deficiencies in the EIA report, the process of appraisal conducted by the EAC and the sector specific guidelines laid down with regard to the constructions of airports and held thus:
"182......a duty is cast upon the EAC or SEAC as the case may be to apply the cardinal principle of Sustainable Development and Principle of Precaution while screening, scoping, and appraisal of the projects or activities. While so, it is evident in the instant case that the EAC has miserably failed in the performance of its duty not only as mandated by the EIA Notification, 2006, but has also disappointed the legal expectations from the same. For a huge project as the one in the instant case,the consideration for approval has been done in such a cursory and arbitrary manner without taking note of the implication and importance of environmental issues. .... Thus, the EAC has not conducted itself as mandated by the EIA Notification, 2006 since it has not made proper appraisal by considering the available materials and objections in order to make proper evaluation of the project before making a recommendation for grant of EC.
187..... the Tribunal is of the considered opinion that there is no option but to scrap the impugned EC granted by the MoEF to the third respondent/ project proponent for setting up the Aranmula airport. "
27) The Hon'ble Apex Court has also considered the importance of consideration of environmental issues before granting Environmental Clearance for the project. It must not only consider the sustainable development but also precautionary principles and whether these aspects have been properly considered and waived by the Expert Appraisal Committee before recommending the project and these has been properly considered by the State Environment Impact Assessment Authority (SEIAA) or Ministry of Environment Forest & Climate Change (MoEF & CC) before granting the Environmental Clearance (EC).
28) The Hon'ble Apex Court has also considered the Environmental Rule of Law in this decision as follows:
" Fundamental to the outcome of this case is a quest for environmental governance within a rule of law paradigm. Environmental governance is founded on the need to promote environmental sustainability as a crucial enabling factor which ensures the health of our eco system.
Since the Stockholm Conference, there has been a dramatic expansion in environmental laws and institutions across the globe. In many instances, these laws and institutions have helped to slow down or reverse environmental degradation. However, this progress is also accompanied, by a growing understanding that there is a considerable implementation gap between the requirements of environmental laws and their implementation and enforcement - both in developed and developing countries alike. The environmental rule of law seeks to address this gap.
The environmental rule of law provides an essential platform underpinning the four pillars of sustainable development- economic, social, environmental, and peace. It imbues environmental objectives with the essentials of rule of law and underpins the reform of environmental law and governance. The environmental rule of law becomes a priority particularly when we acknowledge that the benefits of environmental rule of law extend far beyond the environmental sector. While the most direct effects are on protection of the environment, it also strengthens rule of law more broadly, supports sustainable economic and social development, protects public health, contributes to peace and security by avoiding and defusing conflict, and protects human and constitutional rights. Similarly, the rule of law in environmental matters is indispensable "for equity in terms of the advancement of the Sustainable Development Goals, the provision of fair access by assuring a rights-based approach, and the promotion and protection of environmental and other socio-economic rights."
Amartya Sen argues for a broadening of the notion of sustainable development which is the most dominant theme of environmental literature, from a need-based standard to a standard based on freedoms. Thus recharacterized, it encompasses the preservation, and when possible even the expansion of the substantive freedoms and capabilities of people today without compromising the capability of future generations to have similar - or more - freedoms. The interwined concepts of environmental rule of law thus further intragenerational as well as intergenerational equity.
Decision 27/9 which was adopted by the United Nations Environment Programme's Governing Body at its first universal session in 2013 on Advancing Justice, Governance and Law for Environmental Sustainability' was the first internationally negotiated document to establish the term 'environmental rule of law'. It declared that "the violation of environmental law has the potential to undermine sustainable development and the implementation of agreed environmental goals and objectives at all levels and that the rule of law and good governance play an essential role in reducing such violations". It thus urged governments and organisations to reinforce cooperation to combat noncompliance with environmental laws towards achieving sustainable development. I also called upon the Executive Director to assist with the "development and implementation of environmental rule of law with attention at all levels to mutually supporting governance features, including information disclosure, public participation, implementable and enforceable laws, and implementation and accountability mechanisms including coordination of roles as well as environmental auditing and criminal, civil and administrative enforcement with timely, impartial and independent dispute resolution". Similarly, the first United Nations Environment Assembly in 2014 adopted resolution 1/13, which calls upon countries "to work for the strengthening of environmental rule of law at the international, regional and national levels. "
In 2016, the First World Environmental Law Congress, cosponsored y the International Union for Conservation of Nature and Un Environment, adopted the IUCN World Declaration on the Environmental Rule of Law which outlines 13 principles for developing and implementing solutions for ecologically sustainable development:
(i) Obligation to Protect Nature (ii) Right to Nature and Rights of Nature (iii) Right to Environment. (iv) Ecological Sustainability and Resilience (v) In Dubio Pro Natura (vi) Ecological Functions of Property (vii) Intragenerational Equity (viii) Intergenerational Equity (ix) Gender Equality (x) Participation of Minority and Vulnerable Groups (xi) Indigenous and Tribal Peoples (xii) Non-regression (xiii) Progression
Dhvani Mehta's doctoral thesis explores the idea of environmental rule of law in the Indian context by analysing the functioning of the three institutions of the government with regard to environmental law. It develops a framework to assess whether the environmental rule of law in India is being strengthened or weakened, through an analysis of the legal instruments of each of the institutions of government- statutes, executive orders, and judicial decisions. The indicators on the basis of which this is done are: a) the capacity of statutes to guide behaviour (one of the organising principles of the rule of law) by clearly articulating goals or balancing competing interests; b) the ability of the executive to take flexible but reasoned decisions grounded in primary legislation; and c) the ability of the judiciary to apply statutory interpretation and consistent standards of judicial review to give effect to environmental rights and principles.
In 2015, the International community adopted the 2030 Agenda for Sustainable Development and its 17 SDGs. These 17 goals are:
(i) Eradication of poverty; (ii) Eradication of hunger; (iii) Good health and well-being; (iv) Quality education; (v) Gender equality; (vi) Clean water and sanitation; (vii) Affordable and clean energy; (viii) Decent work and economic growth; (ix) Industry, innovation and infrastructure; (x) Reduced inequalities; (xi) Sustainable cities and communities; (xii) Sustainable consumption and production; (xiii) Climate action; (xiv) Protecting life below water; (xv) Life on land; (xvi) Peace, justice and strong institutions; and (xvii) Partnerships to achieve the goals.
Each of these goals has a vital connection to the others. Together, they provide an agenda for human development: development in a manner which accords adequate protection to the environment. The UNEP recognises that the natural environment- forests, soils and wet lands- contributes to the management and regulation of water availability and water quality, strengthening the resilience of water sheds and complements investments in physical infrastructure and institutional and regulatory arrangements for water access and disaster preparedness.
SDG 13 emphasises the urgent action required to combat climate change and its impacts. This is based on the recognition that extreme weather events such as heat waves, droughts, floods and tropical cyclones have aggravated the need for water management, pose a threat to food security, increase health risks, damage critical infrastructure and interrupt the provision of basic civil services.
The statistics on climate change indicate that:
(i) Between 1880 and 2012, average global temperatures have increased by 0.85 degrees Celsius;
(ii) Between 1901 and 2010, as ocean expanded, the global average sea level has risen by 19 centimeters;
(iii) Since 1990, global emissions of Co2 increased by almost 50 per cent;
and
(iv) Between 2000 and 2010, emissions grew at a more rapid rate than each of the three decades preceding it.
In this backdrop, SDG 16 emphasises the need to protect, restore and promote sustainable use and management of terrestrial eco systems and forests, combat desertification of river lands, prevent land degradation and halt the loss of biodiversity. Terrestrial eco systems provide a range of eco system services including the capture of carbon, maintenance of soil quality, provision of habitat for biodiversity, maintenance of water quality and regulation of water flow together with control over erosion. Maintenance of eco systems is hence crucial to efforts to combat climate change, mitigate and reduce the risks of natural disasters including floods and landslides. In this backdrop, promoting environmental justice and ensuring strong institutions is quintessential to promoting peaceful and inclusive societies for sustainable development. SDG 16 therefore construes the promotion of the rule of law as intrinsic towards implementing multilateral environmental agreements and progressing towards internationally agreed environmental goals.
On 2nd October 2016, India ratified the Paris Agreement on climate change which reaffirmed the goal of 'limiting global temperature increase to well below 2 degrees Celsius, while pursuing efforts to limit the increase to 1.5 degrees above pre-industrial levels'. Article 5 of the Agreement encourages parties to conserve and enhance sinks and reservoirs of greenhouse gases, which includes forests. Under its Nationally Determined Contributions under the Paris Agreement, India made the following three commitments:
(i) Greenhouse gas emission intensity of its Gross Domestic Product will be reduced by 33-35% below 2005 levels by 2030;
(ii) 40% of India's power capacity would be based on non-fossil fuel sources; and
(iii) An additional 'carbon sink' of 2.5 to 3 billion tonnes of CO2 equivalent through additional forest and tree cover will be created by 2030.
In March 2019, UNEP released the Global Environment Outlook themed 'Healthy Planet, Healthy People'. Noting clear 'links between human health and the state of the environment', the report concludes that clean-up and efficiency improvements are not adequate to pursue the 2030 Agenda and the SDGs and achieve the internationally agreed environmental goals on pollution control. Instead, 'transformative chnage' which reconfigures basic social and production systems and structures is needed. This includes well-designed policies on institutional frameworks, social practices, cultural norms and values along with their implementation, compliance and enforcement. In this view, a systemic and integrated policy action would ensure that a "healthy environment is a prerequisite and foundation for economic prosperity, human health and well-being".
The rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive participatory and representative decision making are key ingredients to the rule of law. Public access to information is, in similar terms, fundamental to the preservation of the rule of law. In a domestic context, environmental governance that is founded on the rule of law emerges from the values of our Constitution. The health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution. Proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. "
29) The main allegation in the appeal is regarding suppression of material fact regarding the existence of BM Kaval reserve forest near the project area and its impact on the same. Further, there are certain ecological sensitive areas situated within the prohibited distance and the same has not been disclosed. Further, the primary base line data collected for a period of four weeks is not sufficient. Further, the construction was made prior to getting of Environmental Clearance which is illegal and no buffer stone was provided.
The State Expert Appraisal Committee (SEAC) has not considered the objection raised by the Forest Department regarding the establishment of the unit in this area and there was no proper application of mind as well.
30) It may be mentioned here, the existence of BM Kaval forest area near the plant has not been disclosed in the application for granting Environmental Clearance at all. This was attempted to be overcome by learned counsel appearing for fourth respondent on the ground that this has been considered by the Hon'ble High Court of Karnataka in the Writ Petition No.28843 of 2015 holding that there is no mistake in selecting the area for the project as huge lay out has been formed and more than 25,000 houses are likely to come. So, the Solid Waste Management Plant is a necessity in that area. It may be mentioned here, a perusal of the Judgement of the Hon'ble High Court of Karnataka shows that there was no material produced and the Hon'ble High Court has not gone into the impact of the plant on environment or forest while disposing the writ petition. When there is a suppression of material fact affecting the environment as has been pointed out by the appellant then it is for this Tribunal to consider the same being the Environment Court regarding its impact on the environment and forest.
31) It may be mentioned here that the Deputy Conservator of Forest, Bangalore Urban Division, Bangalore by his letter dated 11.08.2014 has informed fourth respondent regarding the impact of the plant on the Forest which reads as follows:
" No A7 Bhoomi, B.M.Kaval, Tya.Va.Sam/2014-15 Office of the Deputy Conservator of Forest Bangalore Urban Division, Bangalore, Dated:11/08/2014 To The Assistant Executive Engineer, Bruhath Bangalore Mahanagara Palike, Kengeri Sub-Division, Bangalore.
Sir, Sub: In respect of the Establishment of the Wastage/ Debris Processing unit by Bruhath Bangalore Mahanagara Palike at C.A. Site in Sy. No.16 of Lingadheeranahalli, coming under boundary of Sy. No.02, B.M. Kaval Village, B.M. Kaval Forest Area- reg.
Ref: 1. The Principal Chief Conservator of Forest (Forest Force Chief) Bangalore Circular dated: A5(5) JEL.CR-10/2012-13, Dated: 28/10/2013.
2. Letter of the office of the Range Forest Officer, Kaggalipura Vide No.Va.Aa.Aa.Ka.Pu.Va.Bhoomi- /2014-15, dated:
11/08/2014.
3. Complaint letter of Sri B.M. Shivakumar, President, Jayaprakash Narayan Vichara Vedika and others dated:
08/08/2014.
------
With reference to the above subject, vide ref. (3) as per the complaint given by Mr. B.M. Shivakumar, President, Jayaprakash Narayan Vichara Vedike and others to the Range Forest Officer, Kaggalipura Range, dated:
08/08/2014, the Range Forest Officer, Kaggalipura Range, had visited the spot With his staff and inspected the spot which is proposed to establish the Wastage/ Debris processing unit by B.B.M.P. in boundary of Sy.No.92 of B.M.Kaval Village, Lingadheeranahalli Village, Sy.No.16, the B.D.A. has carved the sites, in the said C.A. site the BBMP proposed to establish the Wastage/ Debris processing unit, the said spot is adjacent to B.M. Kaval Forest boundary, in case of establishment of non forest activities the No Objection Certificate should be obtained in respect of the effects on the wild life and on environment.
Therefore, it is requested to provide the documents in respect of the proposed Wastage/ Debris process unit and it is intimated to stop all types of activities until to obtain the N.O.C. from the Forest Department and to stop the activities temporarily in respect of Wastage/ Debris processing unit and to apply in prescribed form completely for N.O.C. Yours faithfully, Sd/.
Deputy Conservator of Forest, Bangalore Urban Division, Bangalore Date: 11/08/2014.
Copy to:
Office of the Assistant Executive Engineer, No.3, South Sub-Division, Banashankari 2nd Stage, Commercial Complex, Bangalore Development Authority, Bangalore for information and further needful action.
The Assistant Conservator of Forest, Bangalore South for information And further action.
The Range Forest Officer, Kaggalipura Range, Kaggalipura for information and for spot inspect of the foret adjacent area and intimated to submit the report in Annexure-1 of the Circular of Principal Chief Conservator of Forest vide No.A5(5) JEL.CR-10/2012-13 dated: 28/10/2013 and it is also intimated to not give any permission to start any activities in the said forest area under FC Act 1980. "
32) It is specifically mentioned in the letter that the plant is adjacent to B.M. Kaval Reserve Forest boundary. Further, the Deputy Conservator of Forest, Bangalore Urban Division, Bangalore also informed fourth respondent by their letter dated 30.08.2014 requesting them to stop further construction where he had extracted the observation of the Range Forest Officer, Kaggalipura that the proposed Wastage/ Debris process unit is 5 meters from the B.M. Kaval Forest Area and in the said area there are lot of rare birds and other wild life living in and around the B.M. Kaval Forest land. Elephants are roaming in that area and recommended not to proceed with the project without obtaining necessary permission from the Forest Department and the letter reads as follows:
" No A7 Bhoomi, B.M. Kaval, Tya.Va.Sam/2014-15 Office of the Deputy Conservator of Forest Bangalore Urban Division, Bangalore, Dated:30/08/2014 To The Special Commissioner, (Solid WasteManagement) Bruhath Bangalore Mahanagara Palike, Narasimharaja Square, Bangalore-560002.
Sir, Sub: In respect of the Establishment of the Wastage/ Debris Processing unit at C.A. Site No.5 in Sy. No.16/1 and 21 of Lingadheeranahalli, coming under boundary of Sy. No.92, B.M. Kaval Village, B.M. Kaval Forest Area- reg.
Ref: 1. The Principal Chief Conservator of Forest (Forest Force Chief) Bangalore Circular dated: A5(5) JEL.CR-10/2012-13, Dated: 28/10/2013.
2. Complaint letter of Sri B.M. Shivakumar, President, Jayaprakash Narayan Vichara Vedika and others dated:
08/08/2014.
3. Letter of the office of the Range Forest Officer, Kaggalipura Vide No.Va.Aa.Aa.Ka.Pu.Va.Bhoomi- /2014-15, dated:
11/08/2014.
3. Complaint letter of Sri B.M. Shivakumar, President, Jayaprakash Narayan Vichara Vedika and others dated:
08/08/2014.
------
Mr. B.M. Shivakumar, President, Jayaprakash Narayan Vichara Vedike and others have given a complaint that the B.B.M.P. authorities have proposed to establish the Wastage/ Debris processing unit at C.A. Site in Sy.No.16 of Lingadheeranahalli Village which is adjacent to B.M. Kaval Forest Land and requested to protect the wild life and forest animal and birds under the Forest (Prevention) Act. With their complaint they have enclosed the letter of B.D.A. written to B.B.M.P. in respect of handing over the land measuring 39086 sq.meters in C.A.Site 5.
The Range Forest Officer, Kaggalipura had inspected the spot and submitted the report with mahazar vide ref (3) above. After verifying the report, it is found that the proposed Wastage/ Debris process unit is 5 meters from the B.M. Kaval Forest Area and in the said area there are lot of rate birds and other wild life living and in and around the B.M. Kaval Forest land Elephants are roaming.
It is opined that, the wild life and forest animals and birds may be effected in case of establishment of the above said unit. The B.D.A. or B.B.M.P authorities have not submitted any documents in respect of the establishment of the wastage processing unit. It is requested to the Assistant Executive Engineer, BBMP, Kengeri Sub-Division, Bangalore to furnish the documents in respect of the proposed unit vide letter dated: 11/08/2014. But till today there is no answer received. In continuation the Regional Manager, Karnataka Environmental Control Board, Rajarajeshwarinagara, Bangalore vide their letter No.KSPCB/RO-RR Nagar/EO/AEO/MSW/IR/2014-15/5646, dated: 08/08/2014 reported that the said area is not suitable for the Municipal Solid Waste Processing Facility.
In case, the said unit established in the said land the wild life and forest animals and birds may be effected and there is a chance of effecting the environment also.
For the above said reasons, and the points stated in the Principal Chief Conservator of Forest, Bangalore it is necessary to obtain the N.O.C. from the Chief Conservator of Forest (Regional) for non forest activities and to submit the prescribed form duly filled. In continuation it is also intimated to stop all types of activities until the date to obtain the N.O.C. from the concerned authorities for the purpose of establishment of the Wastage/ Debris processing unit.
Yours faithfully, Sd/.
Deputy Conservator of Forest, Bangalore Urban Division, Bangalore Copy to:
Hon'ble Chief Conservator of Forest (Regional), Bangalore for information and to communicate with the superior authority in respect of the said subject.
The Assistant Executive Engineer, BBMP, Kengeri Sub Division, Bangalore for information and suitable action and to submit the details requested in this subject vide letter dated: 11/08/2014.
The Commissioner, Bangalaore Development Authority, Kumara Park West, Bangalore for information and needful action.
The Executive Engineer, BBMP, Rajarajeshwari Nagara, Bangalore for information.
The Assistant Conservator of Forest, Bangalore South, Bangalore for information and further action.
Range Forest Officer, Kaggalipura Range, Kaggalipura for information and further action.
Yours faithfully, Sd/.
Deputy Conservator of Forest, Bangalore Urban Division, Bangalore Date: 30/08/2014. "
33) Appellant also produced the Mahazar prepared by the Range Officer, B.M. Kaval Beat, Kaggalipura Range dated 08.08.2014 which reads as follows:
" Mahazar written in the presence of the below signed panchayatidar near 'D'Lane, S.No.92 of B.M. Kaval Forest Area on Eighth day of August Two Thousand Fourteen.
Whereas, today the Conservator of Forest, Kaggalipura Range and their staff visited the spot and shown the complaint letter of Jayaprakash Narayan Vichara Vedike given to the Range Forest Officer and read over the letter. And requested for mahazar of the spot of the proposed project of Wastage/ Debris unit in B.D.A. C.A. site near Kaval Byrasandra Forest Area. We all verified the said land along with the staff of the department and the said land is allotted by B.D.A. near Banashankati 6th Stage. The said land situated at 5 (Five) meters from B.M. Kaval Forest Area and 2 K.M from Turahalli SF, and 1.5 K.M. from Thurahalli Reserved Forest. In the said forest there are wild animals and birds are living and it is confirmed while our inspection. Due to the establishment of the said unit they were affected indirectly and hence it is intimated us that the report has been submitted to the superior officers. The above said matter has been read over to us. The mahazar started at 4.00 p.m. and completed at 4.45. p.m. Signatures of Panchayatidar.Sl.No. 1 to 25
Sd/-
Ramesh Range Officer, B.M.Kaval Beat, Kagglipura Range.
Before me, Sd/-
Deputy Range Forest Officer, Uttarahalli.
Before me, Sd/-
Range Forest Officer, Kaggalipura Range, Kaggalipura."
It is seen from the Mahazar report that the plant is situated at 5 meters from B.M. Kaval Forest Area and 2 KM from Thurahalli Reserved Forest SF and 1.5 KM from Thurahalli Reserved Forest and also mentioned that the establishment of such plant will indirectly affect the wildlife in that area.
34) It may be mentioned here in Form-I submitted by appellant the existence of this Reserve Forest namely B.M. Kaval Reserve Forest adjacent to the facility has not been mentioned. Though the presence of Thurahalli Reserve Forest, Thalaghatta pura Lake, Vadhera halli Lake, Sompua Tank, and Vrishabhavathi Reservoir were mentioned in the Form-I application, impact of the establishment of the plant on these forest as well as water bodies has not been specifically mentioned. The EIA report prepared also does not mention about the impact of the plant on these forest as well as water bodies. Further, the minutes of the State Expert Appraisal Committee (SEAC) also does not show as to whether these aspects have been properly considered by them before recommending the project. Further, it is seen from the State Expert Appraisal Committee (SEAC) minutes that though they were not satisfied with the primary base line data collected for a period of four weeks which even according to them is not sufficient, but that was accepted by them in the public interest without assigning any reason. Normally, the primary base line data has to be obtained at least for a period of one season so as to assess the impact of the plant on environment. But that was postponed for a future date and that has to be considered before commissioning of the project is the observation made by them. But, such an exercise has not been done by them at any point of time before the project was started.
35) Further, the inspection report of State Pollution Control Board dated Nil prepared on the basis of the inspection dated 06.08.2014 which has been produced by the appellant shows as follows:
" No. KSPCB/RO-RR Nagar/DEO/AEO/MSW/IR/2014-15 Date:
INSPECTION REPORT OF SRI K.B. KOTRESH, REGIONAL OFFICER, KSPCB, RAJARAJESHWARI NAGAR- BANGALORE.
1. Name and Address of the Bruhat Bangalore Mahanagara Proposed MSW dump Palike, C.A. site No.5 Site Sy.No.16/1 & 21 Lingadheeranahalli, Kengeri Hobli, Bangalore North Taluk.
2. Extent of area At Sy.no.16/1 & 21: 9 acres 30 guntas.
3. Persons Contacted Mr. Shivakumar, Consultant Shah Environmental Tech.,
4. Date of inspection 06.08.2014
5. Officers accompanied Pavan S, AEO
6. Reference Application Submitted at helpdesk Vide Reg No.75375, Dated:18.07.2014.
******* Bruhath Bangalaore Mahanagara Palike (BBMP) has made an application in Form-I for obtaining authorization under Municipal Solid Wastes Rules, 2000 vide helpdesk Reg.No.75375, Dated 18.07.2014. The proposed area for setting up and operation of Waste processing facility was inspected and the following observations were made. Location site details:
North- BDA Layouts
South- Thurahalli forest
East- BDA Layouts
West- BDA Layouts
GPS Reading of the proposed MSW processing site is:
N: 12o 52' 35"
E: 77o 30' 23"
1. The proposed site located in the C.A. Site 5, 6th phase, 6th Block, Banashankari Layout developed by BDA.
2. The proposed area is located adjacent to Thurahalli forest towards South direction.
3. The site is covered by layouts developed by BDA towards North, East & West direction.
4. Residential houses are already constructed in the Layout.
5. The proposed Municipal Solid Waste processing unit of capacity 200 TPD.
6. One bore well was observed.
7. Lechate treatment cannot be allowed since already it is surrounded by residences, but it can be transported to the nearest processing units.
8. During inspection the project proponent informed that the treatment plant consists of i. 200 TPD Compost plant facility.
ii. Dry waste segregation unit.
iii. Compost Wind drawn platform.
iv. Curing and Compost finishing Area.
v. The site surrounded by green belt area around 800 mts.
vi. Land fill Area as per MSW rules around 22122 sq.mt.
vii. Plastic Waste Bailing Facility.
viii. Lechate Collection Tank.
ix. Administration building
x. The site is surrounded by 5 mts height compound wall of which 3
m is a masonry wall and 2 m is fencing.
xi. Way Bridge and this is a closed shed.
xii. The photographs were taken and they are attached for your
reference.
Recommendations:
In view of the above observation the site is not suitable for establishment of MSW processing facility. "
It is seen from the report that on the southern side Thurahalli Forest was shown as one of the boundaries. It is also mentioned that there are residential houses nearby and construction has already started in that area without getting prior Environmental Clearance. It is mentioned in the report that the site is not suitable for establishment of MSW processing facility. So, it is clear from this that the State Pollution Control Board had earlier taken a stand that this area is not suitable for establishment of Solid Waste Management Plant. But, later for reasons best known to them without any proper reason changed their stand and granted Consent to Establish to this Plant.
36) Further, this Tribunal by order dated 22.07.2019 constituted a Joint Committee comprising of the following members:
(a) Senior Scientist from Regional Office of the Ministry of Environment, Forest & Climate Change (MoEF & CC) at Bebngaluru.
(b) Senior Scientist from Central Pollution Control Board (CPCB), Regional Office at Bengaluru.
(c) Senior Scientist from CSIR, NEERI, Nagpur.
(d) Scientist from Karnataka State Pollution Control Board (KSPCB) to ascertain the following things:
(i) To ascertain whether the siting criteria have been followed or not and when the construction started and was completed.
(ii) Whether the Waste being collected is properly managed and also the present status of the plant and its condition.
(iii) Whether any damage has been caused to the environment affecting the Soil, Water and Air.
(iv) Whether existence of such plant in that area will affect the environment and considering the health aspects of the people in the locality, whether continuance of such plant in that area can be allowed or not.
(v) If at all the plant can be allowed to be continued, whether there is any possibility of any mitigating circumstances to reduce the possibility of pollution and issues affecting the environment.
(vi) If any damage has been caused to environment, assess the extent of damage, compensation payable and the cost of compensation.
All above matters are to be considered by the Committee and submit a report which is required for disposal of the case and the Joint Committee has inspected the area in question and submitted a report which reads as follows:
´ 1.0. Preamble In the Appeal No. 44/2015 with Original Application No. 195/2017 filed by Mr. Jayaram Gouda Vs Union of India & Ors, the Hon'ble National Green Tribunal (NGT), Principal Bench, New Delhi, issued an Order dated 22.07.2019 with the following directions:
"Before going into the merits of the case we feel it appropriate to constitute a Committee;
(i) To ascertain whether the citing criteria have been followed or not and when the construction started and completed.
(ii) Whether the Waste is being collected is properly managed and also the present status of the plant and its condition.
(iii) Whether any damage has been caused to the environment affecting the Soil, Water and Air
(iv) Whether existence of such plant in that area will affect the environment and considering the health aspects of the people in the locality, whether continuance such plant in that area can be allowed or not.
(v) If at all the plant can be allowed to be continued, whether there is any possibility of any mitigating circumstance to reduce the possibility of pollution and issues affecting the environment.
(vi) If any damage has been caused to environment, assess the extent to damage, compensation payable and the cost of compensation.
(vii) All above matters are to be considered by the Committee and send a report is required to disposal of the case.
7. So under such circumstances we constitute a Committee consists of;
(a) Senior Scientist from Regional Office of the MoEF & CC at Bengaluru.
(b) Senior Scientist from CPCB, regional office at Bengaluru.
(c) Senior Scientist from CSIR, NEERI, Nagpur.
(d) Scientist from SPCB to go into the above issues and submit a report in this regard before the next date of hearing.
8 The MoEF&CC, regional office will be the Nodal agency to coordinate the inspection and submission of the report..................
9.........................
10. The Committee shall inspect the site and submit the report on the matter referred to above within a period of two months."
Accordingly, the MoEF&CC, Regional Office, Bengaluru, as the nodal agency, requested all concerned authorities for the nomination of the officials for the above committee. After receiving all the nominations, the date for site visit was fixed in consultation with nominees. Meanwhile, Scientist 'G' from Regional Office of MoEFCC also visited the office of BBMP on 08.08.2019 and had preliminary discussions on the matter with the concerned officials. 1.1 Inspection by the Committee The Municipal Solid Waste (MSW) Processing Plant - Lingadheranahalli- Sy. No: 16A and th 21/1, CA Site No: 05, BBMP W-198, Banashankari 6 Stage, Bengaluru - 560109 was inspected by the committee comprising of following officials on 27.08.2019:
1. Dr. U. Sridharan, Scientist 'G', MoEF &CC, Regional Office, Bengaluru
2. Dr. A.N. Vaidya, Chief Scientist, CSIR- NEERI, Nagpur
3. Mrs. H.D. Varalaxmi, Scientist 'E' CPCB, Regional Directorate, Bengaluru
4. Mr. S. Dinesh, Regional Officer, Rajarajeswarinagar, KSPCB, Bengaluru Supporting Staff from MoEFCC, Regional Office, Bengaluru
1. Mr E. Thirunavukkarasu, Scientist 'E'
2. Mr John Thomas, Research Officer, The officials of Bruhat Bengaluru Mahanagara Palike (BBMP) present during the day of inspection were:
1. Mr. S Sarfraj Khan, Joint Commissioner (SWM), BBMP
2. Mr. N. Muniraju, Joint Commissioner, BBMP.
3. Mr. Lokesh M, Superintendent Engineer, East BBMP.
4. Mr. Doreswamy, AEE Pulikeshinagar, BBMP.
5. Mrs. Chitra. J, Environmental Engineer, Lingadeeranahalli plant
6. Mr. S.V. Venkatesh Murthy, CEO (Plants) & Advisor to Spl.Com. (SWM) BBMP
7. Mr.K. D Despande, Head of Legal Cell, BBMP
8. Mr. T.V. Sekar, Advocate Counsel for BBMP
2.0 Development of MSW processing plants in Bengaluru. 2.1 Overview on SWM: BBMP has made a presentation on the genesis of the plant, processing facilities provided and responses to the above issues raised by the Hon'ble NGT. According to BBMP, Bengaluru is generating about 4500 MT of Municipal Solid Waste every day and about half of the collected waste was earlier dumped in a land fill at Mandur village since year 2008 till 2014. Owing to the problems associated with MSW landfills like generation of odour, flies, mosquitoes, birds, dogs menace and potential health risks, the villagers of that area had a staunch demand for immediately ceasing the practice of sending MSW generated at Bengaluru to Village Mandur. Consequently, as per the assurance given by the then Honourable Chief Minister of the Karnataka, MSW dumping in Mandur village was stooped from December 2014 and alternative arrangements were made for treating MSW that was getting into Mandur village. As an alternative, the Government of Karnataka, in order to improve the solid waste management services in the BBMP areas, did establish 7 MSW processing, treatment and disposal facilities. (Seegehalli, Kannahalli, Lingadeeranahalli, Doddabidarakallu, Subbarayanapalya, Chikkanagamangala & KCDC, Kudlu, (upgrading capacity to 500 TPD) with total capacity of 2300 MT/day. Also, in 2015, Hon'ble High Court of Karnataka issued guidelines for MSW management. Accordingly, the BBMP has installed the composting / waste processing units to manage the city's wastes and the State Government has spent Rs. 440 crores to set up these seven centralised waste processing plants.
Karnataka Urban Infrastructure Development Finance Corporation (KUIDFC) was made as the Nodal agency, Karnataka Rural Infrastructure Development Limited (KRIDL) was made as an implementing agency and BBMP was made as the supervisory agency for implementation. In addition, an empowered committee was also constituted under the Chairmanship of Additional Chief Secretary, Urban Development Department and MD, KUIDFC as the Member Secretary to implement these projects after obtaining required approvals and to monitor the scheme. The task of Operation & Maintenance has been entrusted to different agencies through tendering process.
Processing of MSW commenced in all plants during August, 2015 to November, 2015. However, when plants started functioning, the local population residing in the surrounding areas started protesting against the plants. Protests and demand for the closure of the plants has become a routine affair. Protests were many times very vigorous resulting in the stopping of MSW transport vehicles to the plants. These conditions forced the plants to operate well below their installed capacity. As per the information provided by BBMP, despite conducting frequent public meetings and assuring the MSW processing operations as per standard procedures, the operation of these plants are hampered due to (1) Local protests (2) Economic interests of the real estate agencies and the adjoining land owners developing private sites and layouts in the adjoining areas, (3) Stays given by Honourable High Court & Honourable NGT on different occasions. (4) Fire accidents resulting out of non-disposal of refuse derived fuel (RDF) by the O&M operator. Even though in some cases there was direction from the Honourable High Court to run the plant to the designed capacity, in view of several problems related to the O & M operators, disposal of the RDF, disposal of compost generated, and agitation by local people, several of these plants are either stopped and/or processing a very low quantity of MSW than the installed capacity.
Hon'ble High Court of Karnataka in W.P 24739/2012 has given directions to BBMP for improving the solid waste management. As per the directives of Hon'ble High Court of Karnataka many initiatives like segregation of waste, formation of Ward Committee and drafting of bye law for SWM have been taken. Hon'ble High Court of Karnataka, in its hearing dated 18-04-2018, directed State Govt to constitute a Technical Guidance Committee (TGC) to suggest models to be adopted for processing for seven solid waste processing plants. Zonal commissioners were made as the in-charge and were given directions for effective management and operation of MSW management plants. In addition, it was informed that Hon'ble National Green Tribunal has also issued directions to States for effective implementation of Solid waste Management Rules, 2016 with stipulated time frame. Karnataka State Level Committee under chairmanship Hon'ble retired Supreme Court Judge Sri. Subash Adi is constituted by Hon'ble NGT. The committee is closely monitoring the implementation of Solid waste management in BBMP.
2.2 Project details of Lingadheeranahalli Common Municipal Solid Waste Management Facility:
Lingadeeranahalli Processing plant is one among the seven plants commenced operation in processing of MSW in the month of August, 2015. The land / plot i.e site area is exclusively allotted by BDA (Bengaluru Development Authority) for the processing of Municipal Solid th th Waste in its 6 phase,5 Block, Lingadeeranahalli Sy No:16/1, 21, CA Site No:5 Banashankari layout, and handed over the site to BBMP on 19-04-2013. It was planned that municipal solid waste will be collected and processed at the said location from 17 wards of the RR Nagar zone under the jurisdiction of BBMP. The salient features of the Plant are as follows:
1 Name and location of the Plant Integrated Solid waste processing plant, th Lingadeeranahalli Village, Banashankari 6 Phase.
2 Extent of Land 9 Acres 38 Guntas 3 Owner ship of the Land BBMP (Handed over by BDA for the purpose of Solid waste Management) 4 Capacity of the plant 200 TPD 5 Project capital cost 36.32 crores Operation and 5 Maintenance M/s IL&FS Environmental Infrastructure and Service Limited.
6 Type of Contract Performance Based Service contract 7 EC obtained Letter No: SEIAA12 IND dated: 19-06-2015 8 Plant Commission date 10-08-2015 9 Consent obtained from Initially as per order: PCB178WMC2016/H-167 dated:
unde KSPCB r Water 7-6-2017, the consent under Water & Air Act was valid (Prevention and control of for period from 01-07-2016 to 30-06-2018; Now Pollution) Act,1974, Air application for the renewal of Consent is applied to (Prevention and control of KSPCB by the project authorities.
pollution) Act,1981 10 Authorization under MSW Obtained Authorization from KSPCB under MSW Rules Rules 2016. 2016 on 26.04.2018 which is valid up to 31.12.2021.
The facility is spread over an area of about 9 acres and broadly comprise of the following sections:
Entry point: Vehicle entering inside the gate are checked for credentials/documents of the vehicles and then allowed inside Receipt and Weighing of Fresh MSW: Main objective of this section is to accept the waste being delivered by BBMP for the treatment and processing as per the provisions of the agreement.
Tipping/Waste Receiving Area: Pit system is provided for receiving of waste with a minimum of 2-3 days storage. The advantage of pit system is collection of leachates from MSW in to the sump provided in the pit and thereafter the leachate is pumped outside 25,000 litres capacity leachate sump from where leachate is transported to the sewerage treatment plant at Mylasandra established by Bengaluru Water Supply and Sewerage Board (BWSSB). This pit also acts as a storage facility for collection of MSW for 2 to 3 days at the time of breakdown of machineries. Covered windrow platform: In order to tackle the problem created in rainy season like leachate formation, wet waste is processed in closed high shed.
Pre-Processing / Pre-sorting Section: Pre-processing of the waste is a very essential step in the overall process of design to separate RDF material from the mixed waste. The mixed waste is made to pass through 200 and 100 mm trammel (sieve). Since the plant at present receives only wet waste the process is modified by the operator in order to process the wet waste. The windrows of dimension of 6 m width in the base and a height of 2.5 to 3 m is formed are turned after every 8 days up to 32 days. Then the decomposed waste is passed into trammel modified with 100 mm and 20 mm sieve. The + 100 and +20 mm materials like bits of paper, bits of clothes, etc are taken to RDF Section. It is essential to maintain the temperature from 55 0 to 60 C for at least first 15 days and the moisture content at 25 to 30%. Periodic turning provides Oxygen for microbes to decompose organic wastes efficiently.
Preparatory Section/ Curing: After 32 days of decomposition, the biodegraded material is further screened by 35 mm and 16 mm trammel and then the screened material is allowed for curing for 14 days.
Refinement Section: The output from 16 mm trammel is passed through 4mm sieve.
RDF Section: As the plant is receiving only segregated wet waste and hence no generation of RDF material and hence at present this section is not functional.
The plant operation and maintenance were entrusted to M/s IL & FS Environmental Services Limited, New Delhi. The plant started for the processing of mixed Solid waste on trial run on 10.08.2015. Now as per the direction of Hon'ble High Court of Karnataka only wet waste is being received at the plant. The plant has worked from the commencement to early months of 2018 to stabilize in which period only 588 days worked with less than 50% of designed capacity (66%) in view of 4 months of stay issued by Hon'ble High Court of Karnataka and 6 months stay by Hon'ble NGT. It was informed that during the period of operation about 49,325 tonnes waste was received and processed by the operator producing 4802.75 tonnes of compost 7276.57 tonnes of RDF.
Currently, the operator, due to their financial crisis, is not able make payments to the workers that resulted in non-functioning of the plant causing accumulation of the MSW. The plant operation restarted with the intervention of BBMP in making arrangements for payment towards workers. However, now the operations are stopped, and it was informed that the stocked/accumulated waste is being processed by making windrows and processing. In responses to one of the issues raised by Hon'ble NGT on citing criteria, the BBMP officials informed that the site was allotted by BDA for establishment of the solid waste management facility. The Municipal Solid Waste Management and handling Rules, 2000, which prevailed during the establishment of plant, prescribe citing criteria for Landfills only, and not specifically for MSW processing Plants which was pronounced in the Hon'ble High Court of Karnataka on 24.10.2013, orders in W.P. 24739/2012 present in W.P. No.24739-49/2012. Hon'ble High Court of Karnataka in the order dated: 23.09.2014 has informed that the BBMP is setting up the said wet waste processing facility in pursuance of the directions issued by this court. However, Hon'ble High Court of Karnataka in the same matter vide its order dated 06.04.2018 directed that "11. KSPCB shall take steps for the purpose of declaration of buffer zone as per SWM 2016 Rules. The State Government shall take necessary steps to notify the same in accordance with the law." Accordingly, it was informed that a proposal to notify buffer zone of 200 meters around the facility has been submitted to the KSPCB by BBMP. The Technical Guidance Committee (TGC) constituted by Hon'ble High Court visited the plant th on 13 June, 2018 and made following observations:
"There is a need to look at the leachate drainage between the windrows and provide proper collection system. The slopes provided on the floor need to be checked and corrected to ensure proper drainage. The leachate collection tank should be checked for leaks and if necessary, treatment shall be implemented. Ground water quality needs to be monitored periodically to check for the contamination of water."
3.0 Actions taken by Karnataka State Pollution Control Board (KSPCB) The project authorities have obtained Environmental Clearance from SEIAA on 19.06.2015. Consent for operation as per the provisions of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution), Act, 1981 was granted by the KSPCB on 07.06.2017 with validity up to 30.06.2018. Now, they have applied to KSPCB for renewals of consent vide HDR No: 162105 dated 25.03.2019 and is forward by the regional office to HQ vide No.185 dated 10.05.2019 and it is forwarded by the regional office to their HQ vide No.185 dated 10.05.2019.
KSPCB has issued authorization vide order No: H-99 dated 26.04.2018 under the Solid Waste Management Rules, 2016 which is valid up to 31.12.2021. The KSPCB has received repeated representations from the residents living of adjacent to the facility against the odour nuisance, discharge of leachate into the lake through storm water drain etc. The facility was inspected by the KSPCB on several occasions and environmental parameters including, ambient air, ground water, noise etc as also quality of compost have been monitored. The KSPCB on many occasions observed that the project authorities are not serious about the implementation of the pollution control measures stipulated under consent orders and not operating the Plant scientifically thereby causing pollution related problems in this area. Show Cause Notices were issued for non-compliances like discharge of leachate outside the plant, non- installation of leachate treatment etc. Personnel Hearing was held with the BBMP authority and prohibitory order for the discharge of leachate outside their premises was also issued. Accordingly, the BBMP has stopped the discharge of leachate outside the premises. Subsequently, as per the directives of KSPCB as a short-term measure, BBMP has made arrangements to send the excess leachate remaining after usage in compost processing to BWSSB STP for treatment.
4.0 Compliance to other Environmental Regulations 4.1 Environmental Clearance under Environment Impact Assessment Notification, 2006:
The Common Municipal Waste Management Facility requires prior environmental clearance (EC), under Category B from the State Environment Impact Assessment Authority (SEIAA), before any construction work, or preparation of land by the project management except for securing the land.
The BBMP has submitted a proposal to SEIAA, Karnataka on 31-10-2014 for obtaining EC for the project and obtained EC from SEIAA, Karnataka vide SEIAA 12 IND 2014 dated 19.06.2015. Plant was commissioned on 10.08.2015.
4.2 Authorisation as per SWM Rules: The local authorities (BBMP) required making an application in Form -I for grant of authorisation to the respective State Pollution Control Board for processing / recycling / treatment and disposal of solid waste under the Solid Waste (Management and Handling) Rules, 2000 and Solid Waste Management Rules, 2016. The BBMP has obtained authorization vide Ref. No: H-99 dated 26.04.2018 from KSPCB under the Solid Waste Management Rules, 2016 which is valid up to 31.12.2021. 4.3 Consent from KSPCB: BBMP has obtained consent under Water and Air Acts from Karnataka State Pollution Control Board on 07.06.2017 and the same was expired on 30.06.2018. Now they have applied for renewals of consent of the Board vide HDR No: 162105 dated 25.03.2019.
5.0. Deliberations of the Committee Hon'ble National Green Tribunal in the order issued on 22.07.2019 directed the committee to look into the following:
5.1 To ascertain whether the citing criteria have been followed or not and when the construction started and completed.
5.1.1 Compliance with the Citing Criteria: On the date of the establishment of the facility in 2015, the Solid Waste (Management and Handling) Rules, 2000 were in force. It had the following provision:
"8. The landfill site shall be away from habitation clusters, forest areas, water body's monuments, National Parks, Wetlands and places of important cultural, historical or religious interest.
9. A buffer zone of no-development shall be maintained around landfill site and shall be incorporated in the Town Planning Department's land-use plans."
The Manual on Solid Waste Management, 2000 by Ministry of Urban Development had citing criteria for landfill facility. The above criteria were examined in the EIA and it was pointed out that the facility complies with the citing criteria for lake, river, highway, Airport etc but does not comply with the distance criteria of 500 m from habitation The KSPCB has stipulated a condition in the Consent order dated 07.06.2017 that "A buffer zone of no -development shall be maintained around land fill sites as per the Board office OM No: PCB/WMC/SEO/NDZ/buffer-zone/ 2013-14 dated 05.02.2014." The above said OM stipulated buffer for land fill sites varying from 50 m to 1000 m with respect to sensitivity of the area.
As per the guidelines issued by the CPCB under the Solid Waste Management Rules, 2016, ideally, a distance of 500 meters from the boundary of the Solid Waste Processing and Disposal Facility (sanitary landfill) should be maintained. However, on case to case basis a distance of minimum 200 meter from the Solid Waste Processing and Disposal Facility (sanitary landfill) can be considered subject to the condition that such facility meets the stipulated standards prescribed by State Pollution Control Board with respect to ambient air as well as for stack emissions.
It was informed that the BBMP has not followed citing criteria relating to providing buffer zone from habitation, since there was no clear criteria for the solid waste processing and compost facility under the MSW Rules, 2000, which were in force on the date of the establishment of the facility and there was urgent requirement of establishment of such facility in order to comply with several directions of Hon'ble High Court of Karnataka. Also this area was earmarked for settling up of solid waste management facility while development of residential layout by BDA and the area was almost with no habitation at the time of construction and now there are 24 residential houses reported within a radius of 200 m from the plant. The Committee felt that the buffer zone/ citing criteria is mainly to address the odour nuisance from the solid wastes which is very much expected from processing facility, hence there should be a at least 200 m buffer between the facility to the nearby habitation. BBMP has already submitted a proposal to KSPCB to notify 200 m around the facility as buffer zone as per the Order of Hon'ble High Court of Karnataka dated 06.04.2018 in WP 24739 of 2012.
5.1.2 Commencement of construction and completion: As informed by BBMP, EC for the project was obtained from SEIAA, Karnataka vide SEIAA 12 IND 2014 dated 19.06.2015, while civil construction was started in the month of June, 2014, primarily due to urgency to comply with the directions of Hon'ble High Court of Karnataka dated 13.11.2013 and 18.06.2014. Further, BBMP also informed that the commencement of the construction work was reported to Hon'ble Court on 01.09.2014 by the then Special Commissioner (SWM) and the plant was commissioned on 10.08.2015 only after obtaining EC.
5.2 Whether the Waste is being collected is properly managed and also the present status of the plant and its condition.
5.2.1 Waste Management: On the day of the inspection, the plant was not in operation. According to BBMP, the operator of the plant, M/s IL&FS Delhi, had financial problems and were not operating the plant now. In addition, it was also informed that the Plant was not receiving MSW since March 2019. Old accumulated waste was stored in the plant; however, no significant odour was noticed during the visit.
BBMP further informed that the wastes are transported in closed compactors to avoid spillage of waste on ground. The Compactors are provided with a separate tank of 200 litres capacity to store oozed leachate. Also, about 20% medium-fine matured compost was added & mixed thoroughly into incoming waste so as to absorb both moisture and odorous compounds. Lemon grass oil was also being sprayed to control odour. It was noted that the entire processing facilities such as pre-sorting, composting, RDF preparation are provided with the closed sheds. Concrete yard with slope for collection of leachates has been provided at compost yard. The leachate is collected in a concrete tank. Part of leachate is re-used for compost processing and excess is sent to STP for treatment as temporary measure. The plant has no leachate treatment unit so far. The Solid waste Management Rules, 2016 prescribes followings Standards for processing and treatment of solid waste:
Standards for composting: - The waste processing facilities shall include composting as one of the technologies for processing of biodegradable waste. In order to prevent pollution from compost plant, the following shall be complied with: -
Sl. No Provision Compliance
a) The incoming organic waste at site shall The incoming waste is received in pit be stored properly prior to further with minimum 2-3 days storage capacity processing. To the extent possible, the within closed shed. The advantage of the waste storage area should be covered. If, pit system is separation of leachate from such storage is done in an open area, it the waste.
shall be provided with impermeable base with facility for collection of leachate and surface water run-off into lined drains leading to a leachate treatment and disposal facility;
b) Necessary precaution shall be taken to Proper windrow management is being minimise nuisance of odour, flies, adopted as per SOP and turning of the rodents, bird menace and fire hazard; windrows once in 8 days is being followed.
Entire processing facilities are located in closed shed to prevent flies, rodents, bird menace. Culture is being sprayed on windrows and ultraviolet race emission lighting facility is provided.
c) In case of breakdown or maintenance of The waste is diverted to the nearest plant, waste intake shall be stopped, and available MSW plants for processing and arrangements be worked out for disposal.
diversion of waste to the temporary processing site or temporary landfill sites which will be again reprocessed when plant is in order;
d) Pre-process and post-process rejects shall As the plants are receiving segregated be removed from the processing facility wet waste and hence there is no on regular basis and shall not be allowed generation of RDF. Earlier RDF has to pile at the site. Recyclables shall be been sent by IL&FS to cement factories routed through appropriate vendors. The for co-processing. Similarly, the agency non-recyclable high calorific fractions to is tied up with few fertilizer units for sale be segregated and sent to waste to energy of compost.
or for RDF production, co-processing in cement plants or to thermal power plants.
Only rejects from all processes shall be sent for sanitary landfill site(s).
e) The windrow area shall be provided with Windrow area is provided with impermeable base. Such a base shall be impermeable base of concrete, the base made of concrete or compacted clay of is designed and given suitable slope and 50 cm thick having permeability Concrete drains have been constructed
-7 coefficient less than 10 cm/sec. The which leads to leachate sump outside the base shall be provided with 1 to 2 per shed. Arrangements are made for cent slope and circled by lined drains for Surface runoff through separate Strom collection of leachate or surface run-off; water drains.
f) Ambient air quality monitoring shall be As per the SWM Rule 2016, the ambient regularly carried out. Odour nuisance at air quality at the landfill site shall meet down-wind direction on the boundary of the standards of industrial area. The processing plant shall also be checked ambient air quality Monitoring was regularly. conducted by KSPCB on 14.11.2017 for PM10, SO2, NOx & Ammonia. The ambient air quality monitoring results reveals that SO2, NOx, and NH3 are complying with the ambient air quality standards except PM10.
BBMP should address these issues and provide fugitive dust control measures in the plant such as dust collection or suppression system at unloading area, regular water spray at vulnerable locations etc.
g) Leachate shall be re-circulated in Part of leachate is re-used for compost compost plant for moisture maintenance. processing and excess is sent to STP for treatment as temporary measure.
On pilot scheme 25,000 litres leachate treatment plant has been established at Doddabidarakallu plant and one more LTP plant of 1,25,000 litre capacity is constructed at Bellahally Quarry, which is in trail run.
5.2.2 Present status and condition: The present status of the plant is that around 3000 tons of waste is held in the facility. Most of the waste is in the process of decomposition and waiting for screening and final disposal. There is no leachate and flies noticed inside the premises but there is mild smell which cannot be attributed to a nuisance odour. The leachate tank is half full not mainly because of leachate but also due to recent rains. The drain by the side of the facility is clean and no leachate noticed in the drain which is leading to the Sompura tank. No foul smell noticed outside the facility premises. 63 5.3 Whether any damage has been caused to the environment affecting the Soil, Water and Air The plant, surrounding areas and Sompura lake located at a distance of about 500 m have been visited. No damage has been observed visually. In absence of separate standards for processing facility, standards prescribe for landfill sites in the Solid Waste Management Rules, 2016 for ambient air, surface and ground water, were examined .. The details are given below:
5.3.1 Ambient Air Quality: As per the SWM Rule 2016, the ambient air quality at the landfill site shall meet the standards of industrial area. The ambient air quality Monitoring was conducted by KSPCB on 14.11.2017(when the plant was in operation) for PM10, SO2, NOx & Ammonia is given below:
Ambient Air Quality Monitoring Results Location of SO2 NOx PM10 NH3 3 3 3 3 Monitoring µg/m µg/m µg/m µg/m Site BDL 36 159 39 Standard limit 80 80 100 400 3 Note: All values are expressed in 8 hourly basis (µg/m ), 64 The ambient air quality monitoring results reveals that SO2, NOx, and NH3 are complying with the ambient air quality standards except PM10. However, KSPCB is instructed to have fresh monitoring done once the plant operation resumes, as this data is quite old.
5.3.2 Ground Water Monitoring: The Facility has three bore wells inside the premises for own use. KSPCB has monitored the bore well water in three occasions, the analysis results of water sample taken from the bore well are depicted below;
GROUND WATER QUALITY ANALYSIS RESULTS Sl. Parameters in mg/L Desirable 1 2 3 No except pH Limit (mg/L (24.04.2017) (22.04.2019 (17.06.2019) except pH)
1. pH at 25°C 6.5 to 7.0 6.6 7.8 8.5
2. EC µs/cm at 25°C - - - --
3. Total Dissolved Solids 500 708 838 1098
4. Nitrate 45 13 6.6 0.14
5. Nitrite - - - --
6. COD - - - --
7. Total Hardness 300 328 333 379
(CaCO3) 65
8. Iron 0.3 BDL 0.2 BDL
9. Arsenic as As 0.01 - BDL BDL
10. Lead as Pb 0.05 BDL BDL BDL
11. Cadmium as Cd 0.01 BDL BDL BDL 6+
12. Chromium as Cr 0.05 BDL BDL BDL
13. Copper as Cu 0.05 BDL BDL BDL
14. Zinc as Zn 5 0.1 0.1 BDL
15. Nickel as Ni - BDL BDL BDL 16. Chlorides 250 60 74 70 17. Sulphate as SO4 200 67 80 61
18. Ammonia as N - 0.1 3.2 --
The above table, it is observed that all parameters except TDS and Total Hardness found within the meeting the desirable limit of drinking water specifications (IS 10500:2012), however the concentration of TDS and Total Hardness found slightly higher than the desirable limit of drinking water. However, it is always better toconsider baseline data for such assessment and therefore this was compared to the base line data available in the EIA report. The ground water samples collected and analysed by the EIA consultant during December, 2014- January, 2015 at six bore wells and two surface water in the vicinity showed Total Hardness in the range of 186 to 483 mg/L and TDS in the range of 557 to 969 mg/L. It therefore 66 appears that there is no damage to the environment that can be attributed to the Plant.
5.4 Whether existence of such plant in that area will affect the environment and considering the health aspects of the people in the locality, whether continuance such plant in that area can be allowed or not.
Well-designed and well managed MSW processing facilities are absolutely necessary for the sustainable development of cities. However, if not managed properly, these facilities may cause some impact on environment and nuisance to surroundings in terms of odour, noise, dust etc. As reported, the concerned facility has following systems /practices to avoid such issues.
Lemon grass oil spray and addition of 20% medium-fine matured compost to control odour and moisture content in the incoming waste Concrete road, concrete flooring in the process area so as to prevent any spillage and thereby soil, sub-soil and ground water contamination. Machineries are located within sheds and plant has high compound wall and green belt to control noise pollution. Plant is no longer accepting mixed waste so as to avoid sorting operations leading to dust pollution Plant is collecting all the leachate generated in plant and proposes to have leachate treatment plant installed soon. Most of the houses, except one, are located outside 100 m from the boundary of the plant, minimizing the risk of immediate health hazard. Moreover, appropriate plant design and proper management always minimize the health impacts of such facilities. 67 Under these circumstances and considering the commitment of plant to address shortfalls in environmental measures the plant may be allowed to function subject to strict compliance to environmental regulations as per the requirements of SWM Rules 2016. 5.5 If at all the plant can be allowed to be continued, whether there is any possibility of any mitigating circumstance to reduce the possibility of pollution and issues affecting the environment.
The processing plants play a crucial role in the solid waste management. As per the report of the erstwhile Planning Commission on 'Waste to Energy', published in May, 2014, if the current 62 million tonnes annual generation of MSW continues to be dumped without treatment, it will need about 3,40,000 cubic meter of landfill space every day. With a projected MSW generation of 165 million tonnes by 2031, the requirement of land for setting up landfill for 20 years could be as high as 66,000 hectares (1240 hectare per year) of land, which our country cannot afford to waste. It is therefore imperative to minimise waste drastically going to landfill by at least as much as 75% by way of processing MSW using appropriate technologies. The processing will not only generate revenue and value- added products from waste, but also improve public health and quality of life of people. World Health Organization (WHO) has observed that 22 types of diseases can be prevented/ controlled by improving the MSW management system. This will indirectly save huge financial resources currently spent on health and medical services. Availability of land for establishment of centralized processing plant is the challenge being faced by the urban local bodies. Also, in coming years, it will not be feasible to dump the city waste in rural areas, which is unethical and increasingly opposed by the rural population. Also, due to temporary no permission for plant functioning, the designated quantity of MSW has to be diverted to other plants, which is overloading other plants and may cause unwarranted processing issues. In view of these pertinent reasons, the plant should be allowed to function subject to the following improvements: 68
Treatment of Leachate: BBMP shall establish a treatment plant for leachate. Till the establishment of such plant, the excess leachate shall eb sent to Leachate treatment plant established in other plant.
Odour control: BBMP shall provide proper and adequate odour control measures such as bio-filters/ bio-scrubbers etc prior to the commencement of the operation in addition to the spray of lemon grass oil.
Provision of Buffer zone: BBMP shall take all measures to provide at least 200 m from the boundary as buffer and provide Green belt of 10 m width with the suitable tree species as per the guidelines issued by CPCB in April, 2017.
Storm water management: The storm water should not be allowed to flow into the water body/ lake as there is possibility of contamination by spillages of waste if any. BBMP shall make arrangement to collect all the storm water from the plant and use it for the plantation after suitable de- contamination if any.
Air pollution control: BBMP shall provide fugitive dust control measures in the plant such as dust collection or suppression system at unloading area, regular water spray at vulnerable locations.
Ground water quality monitoring: The ground water quality in and around the plant shall be regularly monitored. At least two piezo meters/ monitoring wells in upstream and three piezo meters/ monitoring wells in the downstream based on the direction of ground water in the area and one or two wells especially on leachate handling/storage area to monitor the seepage if any.
5.6 If any damage has been caused to environment, assess the extent to damage, compensation payable and the cost of compensation The Committee observed from the physical inspection of the plant, adjacent areas, examination of monitoring reports of KSPCB and environmental base line data contained in the EIA report that there are no damages to the environment, which can be attributed to the plant.69
6. Conclusion and Recommendations
6.1 Conclusion: Based on the available reports, presentation by BBMP, actual field visit to plant and surroundings, and discussions with concerned officials, committee has summarized conclusions as follows:
BBMP has not followed citing criteria relating to providing buffer zone from habitation, since there was no clear criteria for the solid waste processing and compost facility under the MSW Rules, 2000, which were in force on the date of the establishment of the facility and there was urgent requirement of establishment of such facility in order to comply with several directions of Hon'ble High Court of Karnataka. In addition, the area was almost with no habitation at the time of construction and now there are 24 residential houses reported within a radius of 200 m from the plant.
The Committee felt that the buffer zone/ citing criteria is mainly to address the odour nuisance from the solid wastes which is very much expected from processing facility, hence there should be a at least 200 m buffer between the facility to the nearby habitation, considering the present situation.
The plant appears to comply with MSW processing standards (Composting in this case) as prescribed in the Solid waste Management Rules, 2016 except for leachate treatment.
As per the physical inspection of the plant, adjacent areas and monitoring reports of KSPCB and environmental base line data contained in the EIA report, there are no damages to the environment, which can be attributed to plant or plant operation.
6.2 Recommendations: The plant can be allowed to function subject to the fulfilment of following suggestions:
a. BBMP shall establish a treatment plant for leachate. Till the establishment of such plant, the excess leachate shall eb sent to Leachate treatment plant already established in other processing plant.
b. BBMP shall take all the odour control measures including the provision of air suction & hood arrangement followed by bio-filters/ bio-scrubbers etc in the areas viz waste 70 receiving section, compost processing, maturation section prior to the commencement of the operation in addition to the spray of lemon grass oil etc. c. BBMP shall take all measures to provide at least 200 m from the boundary as buffer and provide Green belt of 10 m width with the suitable tree species as per the guidelines issued by CPCB in April, 2017.
d. The storm water should not be allowed to flow into the water body/ lake as there is possibility of contamination by spillages of waste if any. BBMP shall make arrangement to collect all the storm water from the plant and use it for the plantation after suitable treatment if any required.
e. BBMP shall provide fugitive dust control measures in the plant such as dust collection or suppression system at unloading area, regular water spray at vulnerable locations.
f. The ground water quality in and around the plant shall be regularly monitored. At least two piezo meters/ monitoring wells in upstream and three piezo meters/ monitoring wells in the downstream based on the direction of ground water in the area and one or two wells especially on leachate handling/storage area to monitor the seepage if any.
g. Ambient Air Quality monitoring shall be conducted inside the plant and also on downwind direction (locations to be suggested by KSPCB) regularly and report be submitted to KSPCB. The monitored data should be displayed at the entrance of the plant.
h. The rejects shall be properly collected and sent to the secured landfill for disposal.
i. Compliance report on the conditions stipulated in the EC shall be submitted to the st regional offices of the Ministry/ SEIAA/ KSPCB once in six months. [ 1 half yearly nd report for April- September by December and 2 report for October - March by June].71 72
37) As far as the siting criteria is concerned, there was no specific distance provided for establishment of Solid Waste Management Plant, but whereas for the landfills certain siting criteria has been provided as per the Notification issued by the Central Pollution Control Board in the year 2015 after the Environmental Clearance was granted in this case. However, the Joint Committee report shows that considering the nature of possibility of pollution likely to cause, it is always better to have some siting criteria for establishment of Solid Waste Management Plant as well. Further, though buffer zone was mentioned in the Municipal Solid Wastes (Management and Handling) Rules, 2000 and also in Solid Waste Management Rules, 2016 what is the area to be fixed has not been mentioned in the provisions, but only by virtue of this subsequent Notification this was fixed and that too considered by the authorities on the basis of the directions given by the Principal Bench of National Green Tribunal, New Delhi. So, in view of the fact that certain distance will have to be provided from the residential area also has to be considered before considering the question of granting Environmental Clearance even in the cases where the Solid Waste Management Plant has to be established, that exercise has not been considered by the State Expert Appraisal Committee (SEAC) or State Environment Impact Assessment Authority (SEIAA) before granting Environmental Clearance in this case.73
38) Even in the revised inspection report submitted by the Pollution Control Board on the basis of the inspection dated 06.08.2014 which has been produced by appellant shows that this is not complying with the siting criteria in respect of habitation, public park etc., and it was placed before the Committee for consideration.
39) It is seen from the report that the disposal of solid waste in the facility is not done scientifically and it causes some nuisance and there are residential houses very near to the same. Though certain recommendations have been made, it was conceded by learned counsel appearing for fourth respondent that the recommendations made by the Committee is not possible to be implemented, especially in respect of establishment of Leachate Treatment Plant and providing at least 200 meter buffer zone and providing Green belt of 10 meter width in the project area.
40) It was admitted by learned counsel appearing for fourth respondent that construction of the project was started prior to getting Environmental Clearance and the application for Environmental Clearance was made only in October, 2014 and it was granted only on 19.06.2015.
So, it is clear from this that some part of the construction was done even earlier before getting the Environmental Clearance. There is no dispute 74 regarding the fact that the project requires prior Environmental Clearance before commencement as provided under EIA Notification, 2006.
41) Learned counsel appearing for appellant relied on the decision of the Hon'ble Apex Court reported in Common Cause Vs. Union of India (2017 (9) SCC 499) for the proposition that Ex post facto Environmental Clearance is unknown to law and that is detrimental to the environment and that would lead to irreparable degradation of the environment. In that case, the Ex post facto Environmental Clearance granted was not set aside by the Hon'ble Supreme Court. But only mentioned that that will come into force not earlier than the date of its grant. So, it can only said that Environmental Clearance granted in this case will come into effect only from 19.06.2015 and not prior to that and any act done by fourth respondent will be illegal and that will have to be dealt with by imposing proper environmental compensation as has been held by the Hon'ble Supreme Court held in Keystone Relators Pvt. Ltd. Vs. Shri Ani V Tharthare & others in Civil Appeal No.2435 of 2019 (Manu/ SC/ 1659/ 2019 = 2019(17) Scale 182) where the environmental compensation imposed by the Western Bench of this Tribunal for proceeding with the construction of building project without getting prior Environmental Clearance was upheld. The same principle has been reiterated by the Hon'ble Apex Court in Goyal Ganga (2018) 15 SCC 257. So, under such 75 circumstances that can not be a ground to set aside the Environmental Clearance but it may be a ground for imposing environmental compensation.
42) The same view has been reiterated by the Principal Bench of National Green Tribunal, New Delhi in S.P. Muthuraman and others Vs. Union of India and others in O.A.No.37 of 2015 and O.A.No.213 of 2014 dated 07.07.2015. In the decision reported in A.P. Pollution Control Board II Vs. Prof. M.V. Nayudu (Retd) and others (2001 (2) SCC 62), the Hon'ble Apex Court has reiterated the duty cast on the authorities in protecting environment and granting any exemption adversely affecting the environment should not be encouraged and all precautionary principle must be applied before applying the sustainable development and only if it is satisfied that applying the principle of sustainable development will not affect the environment adversely having regard to irreversible nature then it can proceed with the project.
43) In view of the discussion made in paragraphs 41 and 42, it is necessary to ascertain the amount of compensation payable by fourth respondent for construction made without getting prior Environmental Clearance in violation of EIA Notification, 2006. Admittedly, the construction was started somewhere in June, 2014, but the Environmental Clearance was granted only on 19.06.2015. So, the construction made by 76 fourth respondent is illegal and in violation of EIA Notification, 2006. Further, the earlier report of the Pollution Control Board shows that dumping was done in this area and there was no proper disposal of waste collected which resulted in causing odour pollution in that area. So, considering these aspects, we feel that imposing environmental compensation of Rs.10 lakhs will meet the ends of justice and we direct fourth respondent to pay an environmental compensation of Rs.10 lakhs and deposit the amount with Karnataka State Pollution Control Board within a period of two months and the Pollution Control Board is directed to utilize this amount for restoring damage caused to environment.
44) Further, in the decision reported in Hanuman Laxman Aroskar Vs. Union of India and connected cases (2019 SCC Online SC 441), the Hon'ble Supreme Court has considered the scope of suppression of material fact by the project proponent and its impact on environment and came to the conclusion that not providing of such material to the member for the State Expert Appraisal Committee (SEAC) to go into this aspect and consider the scope of impact of such project on environment or wild life or forest or ecologically sensitive areas and that may be a ground for setting aside the Environmental Clearance. In that case, certain material aspects like existence of certain reserve forest and ecologically sensitive areas were not mentioned in the Form-I application filed by the project proponent 77 for getting the Environmental Clearance and that was taken as a ground by the Hon'ble Apex Court to set aside the Environmental Clearance. In this case also the existence of B.M. Kaval Forest area adjacent to the project area and also existence of certain other reserve forest and bird sanctuary have not been mentioned in the Form-I application which is clear from the report of Mahazar prepared by the Forest Range Officer which was relied on by the Deputy Conservator of Forest while informing fourth respondent not to proceed with the work without getting permission from the Forest Department. These aspects has not been considered by the State Expert Appraisal Committed (SEAC) before recommending the project to the State Environment Impact Assessment Authority (SEIAA) for granting Environmental Clearance. Dictum laid down in DLF Universal Ltd. Ors. Vs. Director of Town and Country Planning, Hariyana and Ors. 2010 (14) SCC 1 is not applicable to the facts of this case.
45) So, under such circumstances, we feel it appropriate to suspend the operation of the Environmental Clearance dated 19.06.2015 granted by the State Environment Impact Assessment Authority (SEIAA), Karnataka to fourth respondent for establishment of the Solid Waste Management Plant and dispose of the appeal with following directions:
(i) The State Environment Impact Assessment Authority (SEIAA) is directed to consider the question of preparing a fresh Terms of Reference on the basis of the observations made by this Tribunal regarding the non-78
disclosure of B.M. Kaval Reserve Forest and other water bodies as reported by the Forest Department in their letter of the year 2014 extracted by this Tribunal in the Judgment to fourth respondent asking them to stop further construction and also call for a fresh Environment Impact Assessment (EIA) report to be prepared by fourth respondent considering these aspects as well as the recommendations given by the Joint Committee appointed by this Tribunal of the impact of the project on environment and then direct the State Expert Appraisal Committee (SEAC) to have a revisit of the same including making an inspection of the area with Expert Members to assess the impact of the project on environment including the nearby Forest and other ecologically sensitive areas, if any, available and then make necessary fresh appraisal and submit their recommendations to State Environment Impact Assessment Authority (SEIAA) and thereafter State Environment Impact Assessment Authority (SEIAA) shall consider and pass appropriate fresh orders in this regard.
(ii) Fourth respondent is directed to pay an environmental compensation of Rs.10 lakhs within a period of two months and the same shall be deposited with Karnataka State Pollution Control Board and the Karnataka State Pollution Control Board is directed to utilize the amount for restoration of environment and other remedial activities to protect environment.
(iii) Till the matter is considered by State Environment Impact Assessment Authority (SEIAA) afresh, fourth respondent is restrained from using this project area for dumping and disposal of solid waste in the area. The State Environment Impact Assessment Authority (SEIAA) shall complete its exercise of reconsideration of the project and passing appropriate fresh orders in accordance with law within a period of six months.
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(iv) With the above directions and observations, the appeal is disposed of.
46) In the result, with the above directions and observations the Appeal No. 44 of 2015 is disposed of and O.A.No.195 of 2017 is dismissed as not maintainable. Since, this Tribunal has imposed environmental compensation for violation committed by fourth respondent, we do not think it necessary to initiate any prosecution or other contempt proceedings as requested by applicant in M.A.No.259 of 2015 and M.A.No.259 of 2015 which is also disposed of accordingly. Parties are directed to bear their costs in both the cases.
............................................J.M. (Justice K. Ramakrishnan) ...................................E.M. (Sri SaibalDasgupta) Appeal No.44/2015 & O.A. No.195/2017 04th May, 2020.
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