National Green Tribunal
Invertis University vs Union Of India Ors on 18 July, 2013
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
..............
APPLICATION NO. 86 OF 2013
In the matter of:
1. Rayons-Enlighting Humanity
Through its Secretary,
Marwari Ganj, Near Labour Stand,
Bareilly-243005, U.P.
2. Latif Beg,
Village Padarathpur,
Bareilly-243005, U.P.
.................................Applicants
Versus
1. Ministry of Environment and Forests
Through the Principal Secretary,
Paryavaran Bhawan
CGO Complex, Lodhi Road
New Delhi-110003
2. Uttar Pradesh Pollution Control Board.
PICUP Bhawan, III Floor, Vibhuti Khand,
Gomti Nagar, Lucknow-226016, U.P.
3. State Level Environment Impact Assessment Authority
Directorate of Environment, Uttar Pradesh
Dr. Bhim Rao Ambedkar Paryavaran Parishar,
Vineet Khand-1, Gomti Nagar
Lucknow-226010, U.P.
4. Nagar Nigam,
Bareilly, U.P.
...............Respondents
Counsel for Applicants :
Mr. Raj Panjwani, Sr. Advocate and
Mr. Aagney Sail, Advocate for Applicants
Counsel for Respondents :
Mr. Neelam Rathore, Advocate for Respondent No.1
Mr. Savitri Pandey, Advocate for Respondent No.3
Mr. Daleep Kumar Dhayani, Mr. Pradeep Misra,
Advocates for Respondent No.3
Mr. Anil Nag, Advocate for Respondent No.4
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APPLICATION NO. 99 OF 2013
In the matter of :
Invertis University
Invertis Village,
Bareilly- Lucknow Highway
NH-24, Bareilly
Uttar Pradesh-243123
.....Applicants
Versus
1. Union of India,
Through Secretary,
Ministry of Environment and Forests
Paryavaran Bhawan
CGO Complex, Lodhi Road
New Delhi
2. State Level Environment Impact Assessment Authority
Directorate of Environment, Uttar Pradesh
Dr. Bhim Rao Ambedkar Paryavaran Parishar,
Vineet Khand-1, Gomti Nagar
Lucknow.
3. Uttar Pradesh Pollution Control Board.
Through Member Secretary,
PICUP Bhawan, III Floor, Vibhuti Khand,
Gomti Nagar, Lucknow
Uttar Pradesh
4. Municipal Corporation, Bareilly
Through Commissioner
Nagar Nigam Office, Bareilly
Uttar Pradesh
.......Respondents
Counsel for Applicants :
Mr. Sanjay Parikh, Advocate with Mr. Rahul Choudhary
Counsel for Respondents :
Mr. Neelam Rathore, Advocate for Respondent No.1
Mr. Savitri Pandey, Advocate for Respondent No.2
Mr. Daleep Kumar Dhayani, Mr. Pradeep Misra,
Advocates for Respondent No.3
2
APPLICATION NO. 100 OF 2013
In the matter of :
1. Jyoti Mishra, W/o Sh. Yogesh Pandey,
Village Rajau Paraspur,
Bareilly-243001, U.P.
2. Vinesh Pal Singh, S/o Mathura Singh,
Village Gopal Pur,
Bareilly-243001, U.P.
3. Hariom Singh S/o Ajay Pal Singh,
Village Gopal Pur,
Bareilly-243001, U.P.
4. Sanjay Sagar S/o Ram Das,
Village Rajau Paraspur,
Bareilly-243001, U.P.
5. Arif Ali S/o Ashique Ali,
Village Bhindaulia,
Bareilly-243001, U.P.
6. Farzand Ali S/o Liaquat Ali,
Village Padarath Pur,
Bareilly-243001, U.P.
............................Applicants
Versus
1. Ministry of Environment and Forests,
Union of India
Through Secretary,
Paryavaran Bhawan
CGO Complex, Lodhi Road
New Delhi-110003.
2. State Level Environment Impact Assessment Authority
Directorate of Environment, Uttar Pradesh
Dr. Bhim Rao Ambedkar Paryavaran Parishar,
Vineet Khand-1, Gomti Nagar
Lucknow.-226010
3. Uttar Pradesh Pollution Control Board.
Member Secretary,
PICUP Bhawan, III Floor, Vibhuti Khand,
Gomti Nagar, Lucknow-226016, U.P.
4. District Magistrate,
Bareilly-243001, U.P.
3
5. Bareily Developmnt Authority,
Through Chairman,
Bareilly-243001, U.P.
6. Municipal Corporation, Bareilly
Through Commissioner
Nagar Nigam Office,
Bareilly-243001, U.P.
.......Respondents
Counsel for Applicants :
Mr. Gaurav Mitra, Advocate
with Mr. Kartik Nagarkatti, Advocate for Applicants
Counsel for Respondents :
Mr. Neelam Rathore, Advocate for Respondent No.1
Mr. Savitri Pandey, Advocate for Respondent No.2
Mr. Daleep Kumar Dhayani, Mr. Pradeep Misra,
Advocates for Respondent No.3
JUDGMENT
PRESENT :
Hon'ble Mr. Justice Swatanter Kumar (Chairperson) Hon'ble Mr. U.D. Salvi (Judicial Member) Hon'ble Dr. D.K. Agrawal (Expert Member) Hon'ble Dr. G.K. Pandey (Expert Member) Hon'ble Dr. R.C.Trivedi (Expert Member) Dated : July 18, 2013 JUSTICE SWATANTER KUMAR, (CHAIRPERSON):
1. The State level Environmental Impact Assessment Authority, (for short 'SEIAA'), in its meeting dated 19th December, 2012 agreed with the recommendations of the State Environmental Appraisal Committee, (for short 'SEAC') and declared that the Nagar Nigam (Municipal Corporation), Bareilly, Respondent No.4, was not required to take Environmental Clearance (for short "EC") 4 for Municipal Solid Waste Management (for short "MSWM") Project, Bareilly, under the EIA Notification of 2006 (for short the 'Notification'). Vide its letter of the same date, it so informed the Nagar Nigam, Bareilly. Inter alia, the legality, correctness and validity of this letter dated 19th December, 2012 have been challenged in the following applications:
(i) In Application No.86 of 2013, the petition filed by Rayons-Enlighting Humanity, a Society registered under the Society Registration Act, 1860, it has prayed that the above letter dated 19th December, 2012 be quashed, and that the Ministry of Environment and Forests (for short 'MoEF'), be directed to review the Municipal Solid Waste Management Rules, 2000 in the light of the judgment of this Tribunal dated 11th October, 2011, passed in Original Application No. 2 of 2011; Respondents No.2 and 3, the Uttar Pradesh Pollution Control Board, and SEIAA respectively, should be directed to initiate the process of seeking EC in terms of the Notification for the MSWM project of Respondent No.4, the Nagar Nigam, Bareilly and also that Respondent No.4, the Municipal Corporation, Bareilly, be directed to take the same (EC) from the appropriate authority.
(ii) In Application No.99 of 2013, the Invertis University has prayed for quashing of the letter dated 19th December, 2012 as well. It is further prayed that Respondent No.4 be directed to shift the site of the MSWM from the 5 present site in Bareilly to any other appropriate site.
Thirdly, it has prayed for implementation of the Tribunal's order dated 11th October, 2011 passed in Application No.2 of 2011; and that, the area should be restored free from any contamination arising out of the Solid Waste Management Plant, landfill etc. Finally, it is prayed that the letter dated 19th December, 2012 of SEIAA be quashed.
(iii) In Application No.100 of 2013, a group of residents of Village Razau Paraspur, Bareilly, has prayed that since the project in question requires EC under the EIA Notification of 2006, no activity should be permitted to be carried out at the site in question without seeking such clearance. The applicants also have prayed that the communication dated 19th December, 2012 is contrary to the EIA Notification and the Circular dated 15th January, 2008 of the MoEF. Lastly, they have prayed for stay of the construction at the site as well as for awarding compensation and damages to all the persons who have suffered physically, mentally and financially due to illegal construction of the said project.
2. All these three applications make somewhat common prayers in relation to the very same MSWM project, that is sought to be established by Respondent No.4 in village Razau-Paraspur, Bareilly. As such, all these applications raise common questions of law, on similar facts and even their prayers are, to some extent, 6 identical to one another. We propose to dispose of all these three applications by a common judgment.
FACTS
3. It is not necessary for us to notice the facts, as stated in each of these petitions. Primarily, we would refer to the facts, as given in Application No.86 of 2013. As already noticed, the applicant is a registered society under the Society Registration Act, 1860. It is averred that this society is formed to encourage safeguarding of the environment and other human values in the younger generation and has been carrying on various activities at the school as well as other levels in furtherance of plantation, water conservation, water harvesting, etc. As the applicant is more particularly associated with the students and young generation, it has closely been following the developments pertaining to the setting up of the MSWM at Village Razau Paraspur, in Bareilly. They claim to have made various representations to the higher authorities, and even raised a protest in March, 2012 but in vain. Several village Pradhans signed a memorandum against locating the project in the vicinity of Village Razau-Paraspur. The MSWM project, as shown vide Annexure A to the application, is very close to Invertis University, Maharaja Agrasen Institute of Management, SG Hospital, a water body, other villages and even NH 24. All through, the Society has opposed the establishment of the project at the site in question for various reasons and having failed to get redressal of its grievances at various administrative or executive levels, they 7 approach the Tribunal by institution of the present application.
4. On 20th August, 2004, the Bareilly Municipal Corporation, known as Nagar Nigam, Bareilly, submitted an application to Respondent No.3, the Uttar Pradesh Pollution Control Board, for obtaining authorisation for establishment of MSWM plant at Razau Paraspur under the Municipal Solid Wastes (Management and Handling) Rules, 2000, (for short the rules). As per that application, this project was for handling municipal waste and bio- medical waste and was to include a slaughter house hanging unit. A project report was submitted with such details to Respondent No.3. On 3rd January, 2005, a no objection certificate (NOC) was issued in favour of the Nagar Nigam but only for disposal of waste of the city. It will be useful at this stage to reproduce the said no objection certificate. It reads as under:
"In this context, in view of the recommendations received from Regional Office, Bareilly regarding setting up an Integrated Mechanised Composting Plant at property bearing No. 161, Khasra No. K/045, Annexed Gazette No. 5482 (B) 11-5-11(23)-76, Lucknow, dated 03.11.1977 at Village Razau Paraspur, Tehsil-Faridpur, District- Bareilly, total area admeasuring 21.20 acres, we hereby issue, in principle, No Objection Certificate for disposal of 500 tonnes waste per day, on the following terms -
1. The site demarcated in Bareilly Master Plan-2021 shall be used for City Solid Waste Management site."
2. Municipal Corporation shall comply the terms by word as enumerated in Municipal Solid Waste Management (Management and Handling) Rules, 2000 and Municipal waste shall be managed in terms of guidelines, as provided in Schedule-2.
3. Landfill site shall be prepared as per landfill site specifications provided in Schedule-3.
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4. The facility for municipal waste management shall be developed as per standards provided in Schedule-4.
5. Annual progress/Assessment Report Form-2 [Site-4(4)] must be submitted on the due dates.
6. Municipal Corporation shall comply with the terms by word as enumerated in Municipal Solid Waste Management (Management and Handling) Rules, 2000 and Draft Report and specifications shall be submitted within the period of one year from the date of incorporation to the Board along with annexures and request for authorisation letter.
7. After having assessed the environmental impact assessment of the site, Environmental Impact Assessment Report shall be submitted to the Board.
8. The No Objection Certificate as hereby issued shall be valid for 5 years.
Please note that in case of non-compliance or having not complied with satisfaction of the abovesaid terms & conditions, the Board will cancel the said No Objection Certificate. Board has its rights reserved to amend/cancel the terms of the abovesaid NOC. First compliance report shall be submitted by the Municipal Corporation, Bareilly to the Board upto 3.03.2005 in compliance of specific and general terms of the abovesaid No Objection Certificate. Compliance Report shall be submitted to the Board regularly on due intervals, otherwise No Objection Certificate can be revoked by the Board."
5. As is evident from the above, this was the NOC for setting up an integrated mechanised composting plant of 500 tonnes waste per day capacity at the site in question.
6. On 25th May, 2005, Respondent No.3 had written to Respondent No.4 that no compliance report was sent by the latter in furtherance to the NOC dated 3rd January, 2005 and the same could be submitted within a period of one week there upon. It appears from the record that no action was taken in furtherance to 9 this letter. Respondent No.3, again, vide its letter dated 3rd August, 2005, wrote to Respondent No.4 that despite issuing the letter dated 25th May, 2005, no compliance report and progress report, as per the conditions of the NOC, had been submitted and no action had been taken by the Municipal Corporation. Again, the aforesaid request was reiterated. Vide letter dated 24th November, 2005, while referring to all its previous un-acted upon letters, Respondent No.3 again required Respondent No.4 to submit an action taken report within one week from the date of that letter. Years had gone by but still there was no response. Respondent No.3 was compelled to write another letter on 1st September, 2006 wherein, it was specifically noticed that no construction on the MSWM facility had been done till that date except for construction of some staff quarters and Respondent no. 4 was directed to comply with, various conditions stated in the NOC.
7. In the meanwhile, on 14th September, 2006, the EIA Notification came into force. As per Entry No.7(i) of the Schedule to the said Notification, common MSWM facility which was listed in category 'B' required prior EC from the SEIAA. Here, we may notice that there is no record placed before us which could show that any effective step, in relation to the project, were taken by Respondent No.4. Admittedly, no EC was obtained by Respondent No.4 for carrying out/completion of the MSWM project. In the meanwhile, MoEF issued a Circular clarifying applicability of the Notification of 2006 to cases where land had been acquired before 10 the EIA Notification of 1994. The said Circular dated 15 th January, 2008 reads as under:
"Ithas been brought to the notice of this Ministry that an interpretation has been taken by some of the State Pollution Control Boards that EIA Notification, 2006 shall not be applicable for the projects for which land was acquired before the EIA Notification,1994. Further, it has been observed that State Pollution Control Boards have issued NOCs/Consent to Establish (CTE) after 14th September, 2006 without advising the project proponent to seek prior EC under EIA Notification, 2006. In this regard, the following clarification is issued-
(i) Since the EIA Notification, 1994 has now been superseded by EIA Notification,2006, all project activities listed under the EIA Notification, 2006 shall require prior environment clearance under the said Notification without linking it to the date of land acquisition, if the project activity has not commenced at the site.
(ii) Only such projects listed under EIA Notification, 2006 shall not require environment clearance under the said Notification which were not listed in EIA Notification, 1994 and for which NOC was issued on or before September 14, 2006.
(iii) All such projects listed in both EIA Notifications, 1994 and 2006, shall require prior environment clearance irrespective of issue of NOC if the project related activity has not yet commenced at site. The validity of NOC should not be extended without asking the proponent to seek prior environment clearance under the EIA Notification, 2006.
2. In view of the above, it is advised to the State Pollution Control Boards not to grant/extend/revalidate NOC/CTE without advising the proponent to seek environment clearance under EIA Notification, 2006 for the projects which were listed in EIA Notification, 1994 and are now also listed under EIA Notification, 2006 even if they have acquired the land before January 1994. All such projects, which were issued NOC/CTE before 11 September, 2006 and listed in both the Notifications, but have not commenced project activities at the site shall not start project activity now without obtaining prior environment clearance under EIA Notification, 2006 even if the land was acquired before January 1994."
8. On 25th January, 2008, Respondent No.4 issued a notice inviting tenders for setting up of the MSWM project at Bareilly. Some clarifications thereto were also issued on 7th March, 2008. On or about 26th June, 2008, an agreement was signed between Respondent No.4 and M/s AKC Developers Private Limited for setting up of the MSWM project at Village Razau Paraspur, Bareilly.
9. The NOC was issued by Respondent No.2 on 3rd January, 2005 and was valid for a period of five years. Thus, it came to be expired on 2nd January, 2010. Keeping in view certain exigencies and other attendant circumstances, Respondent No.4 amended its agreement dated 26th August, 2008 with M/s AKC Developers Pvt. Ltd. on 10th March, 2011. After amendment of the agreement with the company, on 6th June, 2011, Respondent No.4 applied for authorisation for operating the MSWM project which was, according to them, under construction at the site in question.
10. The Bareilly Master Plan, 2021 was prepared by the State Government of Uttar Pradesh on 8th January, 2012 and the site in question was designated and earmarked for social, cultural and research based organisational services. Vide letter dated 10th February, 2012, the Secretary, Bareilly Development Authority, wrote to Respondent No.4 stating that, according to the Master Plan 2021, the land use of the project site was for social, cultural 12 and research institutions and not for any other activity. Having received the application dated 6th June, 2011 of Respondent No.4, after the period of five years, as contemplated in the NOC dated 3rd January, 2005, Respondent No.3 wrote to Respondent No.4 on 5th March, 2012 that the application was incomplete, and therefore, no permission, as requested, could be granted. In this letter, it was specifically noticed that the period of five years had lapsed and no action in furtherance thereto had been taken by Respondent No. 4. It was further noticed that no request had been made by Respondent No.4 for extension of the NOC. Another important aspect that was disclosed in this letter for the first time by Respondent No.3 reads as under:
"Presently, as per EIA Notification 2006 regarding environmental sanction from the Ministry of Environment and Forests, Govt. of India, which is effective from 14th September, 2006, the compulsion for seeking environmental approval has been made compulsory for Solid Waste Management Project. In this context, nothing has also been done by Municipal Corporation, Bareilly. Even no report has been sent to the State Board till date after making an Environment Impact assessment report in compliance of the said No Objection Certificate. At present, many universities and population has been established in surrounding areas of the site and the matter is also pending before the Hon. High Court"
11. In view of this, the application made by Respondent No.4 for seeking authorisation for operating the MSWM project was specifically declined. Again, vide its letter dated 11th July, 2012, Respondent No.2 informed Respondent No.4 that the EIA report be sent to the Board, which had not been submitted till that date, without which it would not be possible for the Board to consider the application for authorisation. This was in response to the letter 13 dated 17th March, 2012 of Respondent No.4 to Respondent No.2 that they had appointed M/s Grass Roots and Creation India Pvt. Ltd. for Rapid Environmental Impact and General Environmental Assessment Report for operating the said project. Again on 22nd November, 2012, Respondent No.2 wrote to Respondent No.4 asking for technical and factual remarks as well as reply to the objections raised by the Invertis University. It specifically directed R-4 that no construction activity should be carried out until authorisation was issued.
12. The relevant extracts of this letter read as under:
"In this context, you are further directed that you should not carry out any work for establishing Municipal Waste Management Project at Razau Paraspur for disposal of solid waste of the City until obtaining valid authorisation letter issued by State Board under Rule 4, Sub-Rule (2) of Municipal Solid Waste Management (Management and Handling) Rules, 2000, otherwise you will be responsible for any such violation."
13. The matter in relation to Respondent No.2 rested. However, the SEAC, in its meeting dated 11th December, 2012, took the view that Respondent No.4 was not required to take EC in terms of the Notification and it communicated the same to SEIAA, Uttar Pradesh, which had already noticed and accepted the said finding and vide letter impugned herein wrote to Respondent No.4 on 19 th December, 2012 that no EC was required to be obtained. After all these years and all of a sudden on 8th January, 2013, Respondent No.4 wrote to Respondent No.2 to grant extension of NOC dated 3rd January, 2005. Respondent No.2, vide its letter dated 15 th March, 2013 not only extended the validity of the NOC till 31st December, 14 2013 while making the terms and conditions of the NOC applicable, but also vacated the prohibitory order that had been passed by it vide its letter dated 5th March, 2012 banning all construction activities. In this letter, it was also informed that the orders were subject to the Public Interest Litigation pending in the High Court vide Writ Petition No.51327/2012. Furthermore and during the pendency of the present petition, Respondent No.2 even issued authorisation in favour of Respondent No.4 on 28th March, 2013 in response to its application dated 19th March, 2013.
14. It requires to be noticed here that right from the time it was decided to establish a MSWM plant at the site in question, it has been a matter of serious litigation before the High Court from time to time. Right in the year 2001, a Writ Petition was filed in the High Court by the affected villagers, University and other institutions. In Writ Petition No. 2089 of 2001, Invertis Institute v. Nagar Maha Palika, Bareilly, the High Court, vide order dated 18th January, 2001, disposed of the writ petition noticing various grievances, and directed Respondent No.1 to consider various aspects and take appropriate action within four weeks of the order. In Writ Petition No. 7943 of 2005 by the same Institute, the High Court observed that even if the site in question had been vested in the Nagar Nigam and utilised as a dumping ground, even then it did not give it a licence to create nuisance. The dumping ground must be maintained and protected so as to ensure that it does not adversely affect the environment or cause any nuisance to others. Noticing that the area stood urbanised and the Master Plan and 15 sanctioned plans had come into force, it therefore directed that the dumping ground be shifted if there is no other alternative. The Public Interest Litigation vide Writ Petition No.5672 of 2012 which related to the present MSWM project, came up for hearing before the Chief Justice' Bench of Allahabad High Court on 21st March, 2012 and the Court noticed that admittedly, the NOC had expired as the same had not been renewed. Noticing the contention of the counsel that since conditional NOC had expired, the dispute no longer survived, the Bench thus passed the following order:
"We are of the view that since the conditional N.O.C. granted in favour of the Corporation, no longer survives, this petition has lost its efficacy and has rendered infructuous. The petition is, accordingly, dismissed as infructuous".
15. Another Public Interest Litigation No. 51327 of 2012 also came up before the same very Bench. The Bench passed the following order on 3rd October, 2012:
"We find that there is no government order for the purpose of installation of Solid Waste Management Plant as yet at the proposed site. However, we are of the view that if it has not been done, it will be done only after obtaining permission from the State Level Environment Impact Assessment Authority. The interim order will continue till the next date of listing."
16. The Court vide its order dated 19th November, 2012 in civil Misc. Application No. 335640 of 2012 clarified the afore-mentioned order to remove any ambiguity. The relevant part of the said order reads as under: the relevant part of which reads as under:-
"We clarify herein that if no permission is granted with regard to installation of Solid Waste Management Plant by the State Level Environment Impact Assessment Authority, no such work can be carried out. Since the second last sentence of the 16 penultimate paragraph the words ' ......if it has not been done, it will be done only after obtaining permission from the State Level Environment Impact Assessment Authority' is incorporated, most likely the respondent has taken the advantage of the situation. Therefore, the order will be read as no work will be carried out without permission of the State Level Environment Impact Assessment Authority"
17. Various other orders had been passed by the High Court and at no point of time, had the High Court, either directly or impliedly, permitted the establishment of the MSWM plant at the site in question. It has to be kept in mind that that till the year 2001, no work of the project had been carried out at the site in question when the High Court had passed orders and subsequently directed that no work could be carried out without specific permission of the SEIAA, which was never granted. As already noticed, the authorities concerned, in fact, observed vide their letter dated 5th March, 2012 that EC was not necessary. It is evident from the above facts that at no point of time, the Nagar Nigam or its predecessor had taken permission to carry out any work in relation to the MSWM plant. In order to answer the principal controversy arising in the present case, we must, for the purposes of proper appreciation of the legal and environmental issues involved in the present case, formulate the following questions and answer them accordingly:-
(A) Whether the site where the MSWM project has now been constructed is a permissible site in accordance with law.17
18. The project site is one of the most significant facets of any EC matter and before issuance of NOC for establishment of any project, more particularly a MSWM project, it has to be first seen that it does not lead to any environmental damage or public nuisance. The High Court had even directed the Respondent- authorities to ensure that even if it is used for dumping, it should not create any public nuisance and if no alternative is available, the project should be shifted. These orders of the High Court related to the dumping site and not construction of MSWM plant. Obviously, MSWM plant has to meet much more stringent standards of environmental protection so that once such plant starts functioning, there is no environmental degradation, particularly where there are a large number of residential and institutional areas situated in the vicinity of the project. The letter dated 3rd January, 2005, the stated NOC, issued by Respondent No.3 is the backbone of the case advanced on behalf of Respondent No.4. The condition No.1 of the said NOC, as noticed earlier, states as under:-
"The site demarcated in Bareilly Master Plan 2012 shall only be used for city solid waste management site".
19. Further, in terms of the NOC, the land fill site had to be prepared as per the land fill site specifications provided in Schedule 3 to the Rules, and the Nagar Nigam was to comply with the Municipal Solid Wastes (Management and Handling) Rules, 2000 and municipal waste had to be managed in terms of the guidelines, as provided. There is no dispute regarding the Master 18 Plan 2021 being prepared and published. A copy of the Master Plan has been placed on record as Annexure A.14 by the applicant. It was termed as Bareilly Master Plan 2021. As per clause 5.1.13.3 of this Master Plan, a total area of 31.88 hectares for different sites for collection and disposal of solid waste has been proposed. One site between Lucknow Road to Pilibhit Bypass, the second between Kathgodam Road and Moradabad Road, the third between Moradabad Road and Budaun Road, and the fourth between Budaun Road and Lucknow Road, measuring 2.88, 8.96, 8.84 and 11.20 hectares respectively were provided. In other words, as per the Master Plan, four sites were provided for collection and disposal of municipal waste but the site in question was not one of them. In fact, these four sites were for establishment of MSWM plants. The respondents have not been able to demonstrate before us by any cogent and reliable evidence that the site in question was the site identified for establishment of MSWM plant. Vide letter dated 10th April, 2013, office of the Joint Director, Bareilly Regional Planning Division, Urban and Rural Planning Department, Bareilly, Uttar Pradesh, had written to the Vice-Chancellor, Invertis University, providing details of disposal centres for the proposed solid waste in paragraph 3 of the said letter. In this letter, the site in question had not been indicated as the sanctioned or even the proposed site for establishment of MSWM plant. Respondent No.4, while relying upon some reference of the Master Plan, attempted to justify the selection of the site as a permissible site for MSWM plant. In fact, they relied upon the notification dated 3rd November, 19 1977. Let us examine the notification dated 3rd November, 1977 (Annexure R.11). This notification was issued under Sections 4 and 6 read with Section 17(4) of the Land Acquisition Act, 1974. The land was acquired for a public purpose, namely for establishment of trenching ground in Village Razau Paraspur in terms of Section
7. On a plain reading of the notification, it is clear that the land was never acquired for construction or establishment of an MSWM plant. It was neither notified as such nor was specified in the Master Plan as a site for that purpose. Merely because the land has been acquired for the purpose of using it as a trenching ground i.e. a dumping area, would not per se satisfy the requirement that it was a classification of land for the establishment of an MSWM plant and would deem to be earmarked for that purpose under the provisions of the Master Plan.
20. Every area has to be developed in accordance with the provisions of the relevant laws in force and the Master/Zonal Plan of that area. Every development authority has to notify a Master Plan. It has to prepare a draft plan, give public notice, invite objections and thereupon conduct an inquiry and hearing, as contemplated under the law before it is finalised. Once the development plan is finalised, then it becomes a statutory document. The notified plan has a legal sanction and the provisions contained therein are mandatory. They are incapable of being altered or varied without following the due process prescribed in law. The Supreme Court, in the case of NDMC and Ors. v. Tanvi Trading and Credit Private Limited & Ors. (2008) 8 20 SCC 765, took the view that even in terms of guidelines issued in relation to a new building till finalisation of the Master Plan, all controls would have statutory force and would be treated as mandatory and also that such guidelines, so far as consistent with the Master Plan, would continue to be binding even after coming into force of the Master Plan. Similar view to the effect that the Master Plan has the force of law and is mandatory was reiterated by the Supreme Court in the case of Noida Entrepreneurs Association v. NOIDA & Ors. (2011) 6 SCC 508.
21. The Municipal Solid Wastes (Management and Handling) Rules, 2000 were in force when Respondent No.4 had made an application for obtaining authorisation from Respondent No.2. We must notice that this application is stated to have been filed under Rules 4(2) and 6(2) of these Rules. Every municipal authority within its territory is responsible for implementation of the provisions of these Rules. Every State Board or the Committee is responsible for monitoring compliance of the standards regarding ground water, ambient air quality and the compost quality including incineration standards as specified in the Schedule. Application for authorisation has to be filed in Form I and after following the prescribed procedure, the authorisation applied for can be issued for a given period. Upon expiry of such period, a fresh authorisation is required. In terms of Rule 6 of the Rules, the application has to be considered and monitoring done in accordance with Schedules 2, 3 and 4 to these Rules. In terms of Schedule 3, which deals with specifications for land fill sites, site 21 selection by itself is a serious exercise. When a site falls under the development area, it is the responsibility of the development authority to identify the land fill site. While considering the land fill sites, due care has to be taken in relation to prevention of pollution, the facilities to be provided as well as maintenance of ambient air quality. These are the various criteria which have to be examined while locating a site within the ambit and scope of these Rules.
22. Form I, which had been submitted by Respondent No.4 on 28th August, 2004 incidentally stated about the sites as follows:
"5.1 Processing of Waste
(i) Location of Two old sites Razau site Paraspur5.67 Hectt. & Bakerganj 8.58 Hectt. Both sites are under dispute.
Proposal for purchase of New site under the guidance of HUDCO.
5.2 Disposal of
Waste
Two old sites Razau
(i) Number of Paraspur5.67 Hectt. &
Sites identified Bakerganj 8.58 Hectt. Both
sites are under dispute.
Proposal for purchase of New
site under the guidance of
HUDCO.
(v) Details of Proposal for new site
methodology or selection as prescribed under
criteria followed the rule of Solid Waste
for site selection Management-2000.
(vi) Details of It is a temporary
existing site arrangement for dumping of
under operation garbage till Central Govt.
sponsored scheme operable.
Swalanagar in area 1.5 Acre."
22
23. From the bare reading of the columns of the Form submitted by Respondent No.4, it is clear that the site was under dispute and the proposal for purchase of new sites under the guidelines of HUDCO was under consideration. It was also specifically mentioned in this Form that agreement was to be finalised after site selection. In the Master Plan, four sites for MSWM had been identified and it clearly establishes that these were not the sites which have been finalised by any of the statutory authorities to be a fit site for establishment and operation of such a plant. On the contrary, there were objections from all quarters i.e. institutions, villagers, authorities and even Respondent No.3 with regard to issuance of appropriate authorisation for establishment and operation of such a plant at the site in question. We may also notice that in terms of Rule 6.2 of these Rules, it was obligatory upon the authorities concerned to examine the proposal and take into consideration the views of other agencies like State Urban Development Department, Town and Council (Country) Planning Department, Urban Area based Authority and the Ground Water Board or any such other agency prior to issuance of authorisation. In the present case, whatever was told by the development authority has not been taken into consideration at all by Respondents No.2 and 3 while the views of the Air Force base authority, which was situated at a short distance, were not even obtained. In fact, as back as February, 2006, the Station Commander, Air Force, had written to the Nagar Nigam, objecting to the construction of the plant near the Aerodome. It was stated 23 that it was in violation of the Aircraft Rules, 1937. Even this aspect, in relation to the site, was not considered by Respondents No.2 and 3.
24. The Development Authority and other authorities assigned with the job of development have to take their decisions which are in conformity with the regulations and the law. Any decision to the contrary would be an action extra jus. Laconic result of collective reading of the Master Plan, the Development Authority Act and other relevant notifications is that the Development Authority, Nagar Nigam, the Pollution Control Board and their respective officers have no power to vary the land use and places prescribed in the Master Plan, except by amending the Plan in accordance with law, that too for a proper object and purpose. In the present case, the land was acquired for trenching ground in the year 1977. Even this site came under judicial chastisism in the order passed by the High Court where the High Court, in no uncertain terms, directed that if no alternative was available, the site should be shifted. In other words, even using the land as a trenching ground was not accepted at different quarters. With the passage of time, a large number of educational institutions, hospitals and colonies came to be constructed adjacent to the site in question. As already noticed, no work of the project in question had commenced till the year 2008 when the tender for construction of MSWM was invited by Respondent No.4. The Master Plan did not identify this particular site as a site fit for construction of an MSWM plant though it specifically earmarked four sites for that purpose. This 24 would apparently mean that the framers of the statutory document (Master Plan) exercised their wisdom in excluding this location from the earmarked MSWM sites. Once the Master Plan has come into force, then no organisation can be permitted to use the site for establishing a plant which is going to have serious environmental consequences.
25. It cannot be accepted that even by implication, the site in question stood approved for the project. This is primarily for the reason that the Master Plan specifically declares the site in question to be earmarked for social, cultural and institutional areas. In furtherance to such specification, a number of institutional and cultural buildings had come up adjacent to the site in question. Even in the reply filed on behalf of the Respondent, it is stated that it was agricultural land and with permission of the competent authority, it could be used for the project. No such permission was ever taken nor even applied for.
26. Therefore, we have no hesitation in holding that the site in question was never earmarked in the Master Plan/Zonal Plan as an MSWM site and it was not expected of the authorities to establish such a plant in violation of the law. It is a settled rule that exercise of power ought not to be destructive of the law in force. At no point of time, any attempt was made by any appropriate or competent authority to prescribe changed use of land of the site in question.
25 (B) NOC dated 3rd January, 2005 - its impact and the conduct of Respondent No.4
27. What was the basis of Respondent No.3 to issue NOC in favour of Respondent No.4 in the year 2005 is a matter which remains unexplained. But at this stage, we would proceed on the premise that Respondent No.3 had the jurisdiction to issue such a certificate. In the certificate dated 3rd January, 2005, besides putting a clear restriction that the site has to be demarcated and should be so provided in the Master Plan 2021 for the purpose of the project, Respondent No.3 also required Respondent No.4 to prepare and submit a report to it, after having assessed environmental impact of the site. This, admittedly, had not been done till the year 2012. This was a very material condition of the NOC which, before establishment or commencement of the project, Respondent No.4 was obliged to comply with. Respondent No.4 was also required to submit quarterly report to the Board, which again admittedly, had not been done for all these years. The NOC was a conditional document and was valid for a period of five years i.e. till the year 2010. No work of the MSWM project had been carried out until 2008 when notice inviting tenders for setting up of MSWM project at Bareilly was issued by Respondent No.4. The agreement was signed in June, 2008. Apparently, no work was executed in relation to the MSWM project as the agreement itself is stated to have been amended and executed on 10th March, 2011.
28. The first report, in terms of NOC, was required to be submitted by 3rd March, 2005, which admittedly has not been done even till date.
26
29. In May, 2005, the Board itself had informed Respondent No.4 that the terms and conditions of NOC were not being complied with and necessary action should be taken within one week thereafter. This direction had been repeated from time to time, as already noticed, vide letters dated 3rd August, 2005, 24th November, 2005 and 1st September, 2006, but to no avail. In the meanwhile, the order of the High Court in relation to the site in question as a trenching ground was passed. The High Court had passed certain orders directing not to use the site even as a trenching ground. The period of five years, as stated in the NOC, had come to an end on 2nd January, 2010. By that time, no application had been moved by Respondent No.4 for renewal/extension of the NOC nor had any work of the project been carried out at the site in question. It has been pointed out in the reply of Respondent No.4 that expenditure had been incurred on the project after 2005 and prior to 2012 and thus the project work had started. We will be dealing with the legal aspect of this contention subsequently, but as a matter of fact, it should be noticed that the expenditure which had been incurred even as per the voluminous records filed before us, related only to construction of drains, staff quarters, etc. The drain which had to be constructed and on which money is stated to have been spent by Respondent No.4 was a drain which had nothing to do with the project in question and was being constructed at a totally different site and for a different purpose. To put it simply, neither the NOC had been extended nor any work worth mentioning, in relation to the construction of the MSWM plant, had been carried out till the 27 year 2012. Respondent No.3 had taken a definite stand that Respondent No.4 was required to take EC in terms of EIA Notification of 2006. In fact, vide its letter dated 5th March, 2012, it had communicated in no uncertain terms, that authorisation for operating the integrated mechanised composting plant was declined. Not only this, it was at that point of time that before the High Court of Allahabad, similar stand was taken by Respondent No.3 and the High Court had passed the order on 19 th November, 2012 that no work could be carried out without obtaining clearance from the SEIAA. The Board, vide its letter dated 22nd November, 2012, had also restrained Respondent No.4 from carrying out any work for establishment of MSWM plant at the site in question. Therefore, there were court orders as well as orders of Respondent No.3 prohibiting Respondent No.4 from carrying out any MSWM project activity right from the year 2010 to 2012. As already noticed, till 2010, no project activity had at all been carried out. Thus, the conduct of Respondent No.4 is that, on the one hand, it did not comply with the conditions of the NOC dated 3rd January, 2005 while, on the other, it constructed the MSWM plant in flagrant violation of the orders of the court as well as Respondent No.3. The Tribunal will have to take into consideration such conduct of the applicant as it is not conducive to the rule of fair play and hurts the interests of environment. Another important aspect of this is that even the Executive Committee of Respondent No.4 itself did not support this project, particularly, with reference to the site in question. 12 members of the Executive 28 Committee of Respondent No.4 submitted a detailed representation on 12th March, 2013 to the Chairman of Respondent No.4 requesting for calling a meeting of the Executive Committee in terms of Section 89(2) of the Municipal Corporation Act. In that representation, they emphasised that the site selection was against the Municipal Solid Wastes (Management and Handling) Rules, 2000. Under these rules, this project should not be set up near a cluster of habitation. It was stated that there were nearly four villages situated at a distance of 500 to 1,000 metres of the location. It was also stated that the MSWM would not even for a period of five years due to insufficient land available whereas it should be planned for a period of at least 30 years and should not be located near the dense rural population surrounding the MSWM site. They also suggested that besides all this, it was uneconomical and injurious to public health, and therefore, should be given up and shifted to an alternate site. It appears from the record that none of these issues were discussed or deliberated upon at the appropriate forum of Respondent No.4. Respondent No.3, the Executive Committee of Respondent No.4 and even the public at large, particularly from the institutional area, were seriously opposed to the establishment and operation of the project site in question. But this did not get any attention of the appropriate authority at any level.
29 (C) Whether Respondent No.4 was required to take EC in terms of EIA Notification of 2006 and what is the effect of the circular dated 15 th January, 2008?
30. As already noticed, Respondent No.4 had obtained an NOC from Respondent No.3 on 3rd January, 2005 regarding setting up of an integrated mechanised composting plant. This was valid for a period of five years. During all these five years, as is evident from the above quoted facts, nothing was done. Neither any steps were taken nor were the conditions of the NOC complied with by Respondent No.4. In the year 2006, a notification was issued by MoEF providing for EC regulations. The said notification was issued in exercise of the powers conferred by Sub-section (1) and clause (v) of Sub-section (2) of Section 3 of the Environment (Protection) Act, 1986, read with clause (d) of Sub-rule (3) of Rule 5 of Environment (Protection) Rules, 1986. This notification was issued in supersession of the notification dated 27th January, 1994. In terms of this notification, under clause 2, the projects and activities which required EC were divided in different categories. The projects or activities in Category 'A' in the Schedule were required to take EC from the Central Government in the Ministry of Environment and Forests while those falling under Category 'B' were required to take clearance from the State level Environment Impact Assessment Authority. This clearance was required to be taken for all projects or activities - new or even modified - and even if any change in product-mix in an existing manufacturing unit included in the Schedule beyond the specified range was made. As per the Schedule under item No.7(i), projects relating to Common 30 MSWM Facility projects fell under Category 'B' , and therefore, they were required to take clearance from SEIAA. In addition thereto, all general conditions were applicable to such projects. In other words, it was obligatory upon every project proponent establishing or operating MSWM unit to take EC from the SEIAA. This was a statutory requirement and there was no escape from compliance thereof. A kind of escape route to this statutory compliance was provided by the circular dated 15th January, 2008. The said circular reads as under:
"It has been brought to the notice of this Ministry that an interpretation has been taken by some of the State Pollution Control Boards that EIA Notification, 2006 shall not be applicable for the projects for which land was acquired before the EIA Notification,1994. Further, it has been observed that State Pollution Control Boards have issued NOCs/Consent to Establish (CTE) after 14th September, 2006 without advising the project proponent to seek prior EC under EIA Notification, 2006. In this regard, the following clarification is issued-
(i) Since the EIA Notification, 1994 has now been superseded by EIA Notification,2006, all project activities listed under the EIA Notification, 2006 shall require prior environment clearance under the said Notification without linking it to the date of land acquisition, if the project activity has not commenced at the site.
(ii) (ii) Only such projects listed under EIA Notification, 2006 shall not require environment clearance under the said Notification which were not listed in EIA Notification, 1994 and for which NOC was issued on or before September 14, 2006.
(iii) All such projects listed in both EIA Notifications, 1994 and 2006, shall require prior environment clearance irrespective of issue of NOC if the project related activity has not yet commenced at site. The validity of NOC should not be extended without asking the proponent to seek prior environment clearance under the EIA Notification, 2006.31
2. In view of the above, it is advised to the State Pollution Control Boards not to grant/extend/revalidate NOC/CTE without advising the proponent to seek environment clearance under EIA Notification, 2006 for the projects which were listed in EIA Notification, 1994 and are now also listed under EIA Notification, 2006 even if they have acquired the land before January 1994. All such projects, which were issued NOC/CTE before September, 2006 and listed in both the Notifications, but have not commenced project activities at the site shall not start project activity now without obtaining prior environment clearance under EIA Notification, 2006 even if the land was acquired before January 1994."
31. With reference to the said circular, the contention raised on behalf of Respondent No.4 is that in terms of paragraphs (i) and (ii) of the said circular, Respondent No.4 was not required to take any EC.
32. Let us examine the merits of this contention with reference to the facts of the present case. Under clause (i), all the projects listed under EIA Notification, 2006 shall require prior EC irrespective of the date of acquisition of land if the project activity has not commenced at the site in question. This clause makes obtaining of EC compulsory if the project activity has not commenced at the site. In this clause, the expression 'project activity' is of significance. The project activity has to be understood in the context of its common understanding or common parlance. Here, activity must have a direct nexus to the projects, as contemplated under the notification. The expression activity must be read ejusdem generis to the expression project. There has to be a direct relationship between the activity and the project. It was the project of construction and commencement of MSWM plant that required 32 EC from the competent authorities. The construction of staff quarters per se would not require EC in the facts of the case, as it might have been sufficient for Respondent No.4 to take clearance, and get its plans sanctioned, from the competent authorities in accordance with Master/Zonal Plan. The environment clearance under the 2006 notification is relatable to entry No. 7(i) of the Schedule to where a MSWM plant is to be set up. Thus, the activity must be such which is directly connected with the establishment of the plant. An activity which has a remote or inconseqential connection to the project would not be an activity directly connected with the project so as to fall within the ambit of the language of the notification.
33. In the present case, the 'project activity' must be considered as an activity which is related to setting up, operating and maintenance of the MSWM plant. This activity admittedly did not start till the year 2011 when the agreement for setting up of such plant was made, subject to amendments between Respondent No.4 and the company which was required to set up the plant. The letter of the Corporation and orders of Respondent No.3 clearly showed that no activity had been carried out at the project in any case till 15th January, 2008 when the circular dated 15th January, 2008 of the MoEF was issued. We may also notice that there were prohibitory orders passed by the High Court as well as the Board as late as 2010, prohibiting Respondent No.4 from carrying out any construction at the site in question. Since no project activity had been carried out as on the date issue of the circular and 33 subsequently, the question of Respondent No.4 taking benefit of clause (i) of the circular in relation to exempting it from seeking EC in terms of the notification did not arise.
34. In order to avoid the application of EIA notification of 2006, reliance by Respondent No.4 has also been placed on the circular dated 15th January, 2008. Before we examine the impact of clause
(ii) of the circular dated 15th January, 2008, we must understand that this circular is a mere exercise of executive power and is not a statutory document. The EIA notification of 2006 is a notification having the force of law and is statutory in its contents and nature. A circular issued by the Ministry in exercise of its executive power cannot frustrate the operation of a statutory notification. Such a circular has to be construed harmoniously and to ensure that it furthers the cause of the statutory notification and does not lead to an absurd result i.e. where the statutory notification requires EC to be obtained, the circular cannot wipe out that effect without amending the statutory notification issued in exercise of the executive power. A circular can be clarificatory in nature but it cannot be in contradiction to the statutory notification. The purpose of such notification is to supplement the gaps, if any, left by the statutory notification and cannot be construed in a manner that will completely distort the application of the primary notification. At this stage, we may usefully refer to the judgment of the Supreme Court in V.C., Banaras Hindu University & Ors. v. Shrikant (2006)11 SCC 42 where the Court, while dealing with the effect of executive instructions held as under: 34
"23. We may notice a similar provision, being Clause 76 of the Bihar Services Code, which reads as under:
Unless the State Government, in view of the special circumstances of the case, shall otherwise determine, a government servant, after five years' continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave ceases to be in Government employ.
(a) The validity of the said Rule came up for consideration before the Patna High Court in Sobhana Das Gupta v. The State of Bihar and Anr. (1974) PLJR 382, wherein the said Rule was struck down relying on Jai Shanker v.State of Rajasthan (1966)IILLJ140SC and Deokinandan Prasad v. State of Bihar (1971) ILLJ 557 SC stating:
I may first refer to the decision of the Supreme Court in the case of Jai Shanker v. State of Rajasthan. Regulation 13 of Jodhpur Service Regulation fell to be considered in that case. The aforesaid regulation was:
An individual who absents himself without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority. Considering this regulation Hidayatullah, J. observed:
Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate 35 authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here.
It may be mentioned that this case arose out of a suit where a declaration was sought that the termination of the service of the plaintiff was illegal.
(b) In the case of Deokinandan Prasad v. State of Bihar (1971) ILLJ 557 SC the true effect of the decision in Jai Shanker's case was considered. A reference was also made to Rule 76 of the Bihar Service Code. In this context it was observed:
A contention has been taken by the petitioner that the order dated August 5, 1966 is an order removing him from service and it has been passed in violation of Article 311 of the Constitution, According to the respondents there is no violation of Article 311. On the other hand, there is an automatic termination of the petitioner's employment under Rule 76 of the Service Code. It may not be necessary to investigate this aspect further because on facts we have found that Rule 76 of the Service Code has no application. Even if it is a question of automatic termination of service for being continuously absent for over a period of five years, Article 311 applies to such cases as is laid down by this Court in (1966) IILLJ 140 SC . In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regulations which is as follows:
An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority.
It was contended on behalf of the State of Rajasthan that the above regulation operated automatically and there was no question of removal from service because the officer ceased to be in the service after the period mentioned in the regulation. This Court rejected the said contention and held that an 36 opportunity must be given to a person against whom such an order was proposed to be passed, no matter how the regulation described it. It was further held to give no opportunity is to go against Article 311 and this is what has happened here.
Therein, the law was laid down in the following terms:
The consideration on these two cases makes it clear that in the circumstance as in the present case, treating the petitioner to have ceased to be in Government employ amounts to her removal, and further that the said removal without giving her an opportunity is to go against Article 311 of the Constitution. In the circumstances of the present case, violation of Article 311 of the Constitution is writ large. There can, therefore be no doubt that the order under Annexure 2 is illegal, and the petitioner cannot be deemed to have ceased to be in Government employ on the basis of the said order or on the basis of Rule 76 of the Service Code.
The Respondent herein had filed four writ petitions. Some interim orders were also passed in his favour. He did not get the benefit of any of the said orders. In his fourth writ petition, the Executive Council was directed to consider his case. It did not do so for more than two years. Why despite the High Court's order, the Vice Chancellor failed to place the matter before the Executive Council is not disclosed. The resolution of the Executive Council dated 8/9th January, 2003 was also not final. The same was placed before the High Court by way of a supplementary counter-affidavit only on 23.3.2003 whereas the matter was heard much prior thereto and the judgment was reserved. Judgment was delivered on 25th March, 2003 which again go to show that an attempt had been made by the University to stall the proceedings before the High Court. Before us only the University has taken a stand that even the Executive Council had put its seal by way of approval of the order of the Vice Chancellor. As the initial order passed by the Vice Chancellor was wholly without jurisdiction, the same was a nullity and, thus, the purported approval thereof, by the Executive Council would not cure the defect. Even if we do not take into consideration the legality, reasonableness or otherwise of the resolution of the Executive Committee, it is clear that so far as the order 37 passed by the Vice Chancellor is concerned, he failed to consider the question as to whether the Applicant was otherwise entitled to leave. The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case.
(c) In K.I. Shephard and Ors. etc. etc. v. : Union of India and Ors. (1988)ILLJ162SC , this Court held:
...It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose.
{See also Assam Sillimanite Ltd. v Union of India :
[1990]1SCR983 and H.L. Trehan v. Union of India : AIR1989SC568 .] We have noticed hereinbefore that the nature of leave, inter alia, was compensatory one. Although it cannot be claimed as a matter of right but an employee who had worked during summer vacation would have a legitimate expectation that he can avail the same. He was also entitled to be granted detention leave, unless there exists a just reason to refuse the same. We have noticed hereinbefore that the Head of the Department granted the leave and made recommendation for grant of permission. The Vice Chancellor even did not consider the same. An order passed by a statutory authority, particularly when by reason whereof a citizen of India would be visited with civil or evil consequences must meet the test of reasonableness. Such a test of reasonableness vis-à-vis the principle of natural justice may now be considered in the light of the decisions of this Court.
(d) The question came up for consideration before a three-Judge Bench decision of this Court, in D.K. Yadav v. JMA Industries Ltd. (1993)IILLJ696SC , wherein emphasizing the requirements to comply with the principles of natural justice while terminating the services of the employees on the touchstone of Article 21 of the Constitution of India;
it was held that not only the procedure prescribed for depriving a person of his livelihood must meet the challenge of Article14 but also the law which will liable to be decided on the anvil thereof.
38 Here again, this Court opined that Article 14 requires that the procedure adopted must be just, fair and reasonable. It was furthermore held:
Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. This Court opined that right to life enshrined under Article 21 would include the right to livelihood and thus before any action putting an end to the tenure of an employee is taken, fair play requires that reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice.
(e) In Uptron India Ltd. v. : Shammi Bhan and Anr. [1998]1SCR719 , this Court was considering the validity of the provisions of the Standing Orders of the company containing a clause that services of the workmen would be liable for automatic termination.
This Court opined that if prior to resorting thereto an opportunity of hearing is not granted, such a provision would be bad in law.
(f) The said legal position was reiterated in Scooters India Ltd. v. M. Mohammad Yaqub and Anr. :
(2001)ILLJ7SC , where again requirement to comply with the principles of natural justice was highlighted.
The matter may, however, be different in a case where despite having been given an opportunity of hearing, explanation regarding his unauthorized absence is not forthcoming or despite giving him an opportunity to join his duty, he fails to do so, as was the case in Punjab & Sind Bank and Ors. v. Sakattar Singh (2001)ILLJ174SC
(g) In Lakshmi Precision Screws Ltd. v. Ram Bhagat (2002)IIILLJ516SC , a Division Bench of this Court was considering Clause 9(f)(ii) of the Standing Orders which reads as under:
39
9.(f) Any workman who, *****
(ii) absents himself for ten consecutive working days without leave shall be deemed to have left the firm's service without notice, thereby terminating his service.
The workman therein offered an explanation and having regard thereto, the Labour Court came to the conclusion that the action of the management in terminating the services of the workman therein was not justified. When the matter reached this Court, it was opined:
Let us, therefore, analyse as to whether this particular Standing Order in fact warrants a conclusion without anything further on record or to put it differently does it survive on its own and that being a part of the contract of employment ought to govern the situation as is covered in the contextual facts.
Referring to the decisions noticed by us hereinbefore, it was held:
It is thus in this context one ought to read the doctrine of natural justice being an inbuilt requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from 13.10.1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorized leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed.
The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated, stating: Arbitrariness is an antithesis to rule of law, equity, fair play and justice - contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law.
(h) A provision relating to abandonment of service came up for consideration yet again in Viveka Nand 40 Sethi v. Chairman, J&K Bank Ltd. and Ors. (2005)IILLJ1034SC before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding:
A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.
(i) Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan AIR2000SC2783. In that case, interpretation of Rule 5(8)(ii) came up for consideration which is in the following term:
Rule: 5(8)(ii) - An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of Clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council.
It was held that a show cause notice and reply would be necessary. If no show cause notice had been given, this Court held that the principles of natural justice would be held to be complied with.
24. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a notice to show cause would not make any difference as the employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.41
25. The parties in this case proceeded on the basis that it was not a case of misconduct. The High Court, therefore, in our opinion, wrongly arrived at the conclusion that the Respondent was guilty of misconduct. In that view of the matter, it is also not necessary for us to advert to the question as to whether in the facts and circumstances of this case, the High Court could have directed modification in the quantum of punishment without arriving at a finding that the same was shockingly disproportionate to the gravity of the charges made against the Respondent herein. The fact situation obtaining in this case is entirely different. Not only the Respondent made all attempts to join his duties, but, the situation prevented him from doing so beyond his control. Furthermore, in this case, the Vice Chancellor had no jurisdiction at all. Even the notification dated 25.03.1998 had no application."
35. Still in the case of State of U.P. and Ors. v. Saraya Industries Ltd. 2006 (11) SCC 129, the Supreme Court stated that provision for imposition of duty or evasion thereof must be provided in terms of the law. By reason of an executive order, a presumption cannot be raised, neither can penalty be levied. The matter would have been different, if the same was provided for, as has been sought to be done now, by way of terms and conditions of licence or in terms of the rules. By reason of an executive instruction, the provisions of the law cannot be effaced.
36. The purpose of issuing executive directions or circulars is primarily to provide guidelines which then must be read together for the purpose of ascertaining the intendment thereof. Thus, executive orders and circulars have to be interpreted and construed in the backdrop of these stated principles and they cannot be intended to achieve an object which is contra or even different than the statutory law.
42
37. Now, we revert back to consider the circular dated 15thJanuary, 2008. Admittedly, the project in question was not listed in EIA notification of 1994 and is listed under EIA notification of 2006. It would not require EC under the EIA notification of 2006 if it was not shown in EIA notification of 1994 and NOC was issued on or before 14th September, 2006. Here, we are concerned with environmental protection with reference to Municipal Solid Waste (Management and Handling) Rules, 2000 (for short 'MSW Rules). These rules elaborately dealt with the collection and disposal of municipal solid waste. None of the terms and conditions of these rules were complied with by Respondent No.4 till expiry of the NOC period of five years in 2010. The NOC referred to in clause (ii) relates to the NOC being issued under the provisions of the Environment (Protection) Act, 1986 read with MSW Rules of 2000. The NOC issued by Respondent No.3 does not state as to under what provision of law or under what statute the NOC was being issued. In any case, this was the NOC for the purpose of establishment of MSWM plant, which itself was not set up till the expiry of the NOC period in 2010. Thus, the NOC was rendered ineffective and infructuous.
38. Furthermore, we must see the intent of the circular which has been clearly conveyed in clause (iii) of the circular dated 15th January, 2008, though in a different context. Under that clause, obtaining of EC irrespective of NOC would be necessary if the project has not commenced and it was listed under both the notifications of 1994 and 2006, but what is important is that the 43 NOC should not be extended without asking the project proponent to seek prior EC under the notification. The purpose and intent of the circular dated 15th January, 2008, thus cannot be construed to provide an exemption to the statutory notification of 2006 but is to provide solutions in some given situations while ensuring that EC is taken. The exception is relatable to only those projects where the project has been commenced. That is why, the project activity must relate to operation of the plant rather than commencing of ancillary works (such as construction of staff quarters). Now we must also examine the stand taken by Respondent No.3 for all these years. Though the circular had been issued in the year 2008, still the Board was of the firm view that Respondent No.4 need to obtain EC from SEIAA. Even as late as on 5th March, 2012, the Board wrote to Respondent No.4 that NOC had already lapsed and in view of the notification of 2006, there was a compulsion for seeking environmental approval for solid waste management project and specifically stated that no report had been submitted and the authorisation requested was specifically declined. Even on 11th July, 2012, similar stand was taken and the Board called for rapid environmental impact and general environmental assessment report to consider the request. Thus, as late as the end of 2012, the Board was not willing to grant any authorisation or permission to Respondent No.4 for operating the MSWM project in question. It is also evident at that stage that the project had not been completed and even its construction was not complete. The stand 44 taken by Respondent No.3, apparently was in consonance with law.
39. For reasons best known to Respondent No.3, the situation underwent a complete change and it took a somersault in its view. What happened in December, 2012 was that, all of a sudden, Respondents No.2 and 3 not only issued authorisation by extending the NOC after it had already lapsed but even took the view and accepted the recommendation of the SEAC and SEIAA that Respondent No.4 was not required to take EC. It abruptly issued the letter dated 19th December, 2012. There was nothing on record before us as to what proceedings were taken by Respondent No.3 to examine the technical aspects, environmental impact and the various objections with regard to the site in question. The order dated 19th December, 2012 was issued in the absence of any proceedings or any proper application of mind. We must also notice that Mr. J.S. Yadav, at the relevant time, was the Member Secretary of Respondents No.3 as well as 2. We even called for original files of Respondent No.3 and they also did not reflect any better picture. Then, after the institution of the application, the order dated 15th March, 2013 came to be issued. In the face of above facts and the records and the law, we have no hesitation in holding that Respondent No.4 was required to take EC from SEIAA, being Category 'B' project before setting up and operating MSWM plant. Respondent No.4 is not exempted from seeking that clearance on the strength of circular dated 15th January, 2008. 45
In order to have independent assessment of the project, it would be desirable that the Member Secretary of Respondent 3 should not be the Member Secretary of the SEIAA. (D) Public Health, Environment and Discussion in General
40. We have already held that the site selection was in violation of the established and known procedure. It was not in accordance with the relevant rules. In fact, the site selection appears to be an arbitrary decision based on no analysis, not in accordance with the MSW Rules, 2000 and does not even appear to be in public interest. The argument advanced on behalf of Respondent No.4 was that the educational institutions like Invertis University and other institutions had come up during the operation of the NOC issued in favour of Respondent No.4 for establishment and operation of the plant in question. Furthermore, some land area belonging to the Corporation had been unauthorisedly occupied by the University. These submissions do not impress us at all, primarily for the reason that right from 2005 till 2010-11, no work had been executed in relation to the plant in question. In the meanwhile, after obtaining sanction from the requisite authorities, the Invertis University and other buildings had come up. There had been rapid increase in the population density of the surrounding villages and there were admittedly water bodies around the site in question. It was expected of Respondent No.3 to seriously ponder over the project, do a technical analysis and examine the impact of the plant in question on the environment. Without performing their 46 basic duty in accordance with the rules, the site had been approved, which approval we are unable to sustain.
41. The establishment and construction of the plant in question appears to have been carried out in blatant violation of the orders of the High Court and Respondent No.3. The High Court as well as Respondent No.3 had categorically noticed that the NOC had lapsed as on 2nd January, 2010 and the same was not renewed, and therefore, no construction activity could be carried out. The High Court, in its earlier orders had stated that even the trenching ground from the site in question should be shifted to an appropriate site. Therefore, the Tribunal cannot permit Respondent No.4 to take advantage of its own wrong and claim equity on the ground that it has spent some money in raising the plant in question. The amount which was spent in 2006 and earlier on construction of a drain had nothing to do with the MSWM project in question. The activity on which money was spent is not related to the MSWM project activity. In fact the tender itself was invited in 2008 and agreement with the executing agency was amended in 2011. For these reasons of serious consequences, we are of the considered view that Respondents cannot be permitted to claim benefit of their own wrong doings.
42. 12 members of the Executive Committee of the Municipal Corporation, Bareilly, strongly opposed, in public interest relatable to public health, the establishment of the MSWM plant in question and insisted on shifting of its site. Even this serious opposition did not bring any proper results and there was undue persistence 47 upon carrying out the project at the site in question. There is a complete lack of application of mind while dealing with the application for issuance of authorisation as well as considering Form I and the SEAC's recommendations by Respondents No.2 and 3. Without regard to any proper reasoning and analysis, the decision taken by Respondent No.3 for all these years, was suddenly altered. This certainly contains an element of arbitrariness as the relevant considerations were overlooked while irrelevant matters were taken into consideration while taking a final decision in this regard.
(E) Sustainable Development
43. In Susetha v. State of Tamil Nadu AIR 2006 SC 2893, the Supreme Court observed that the doctrine of sustainable development is not an empty slogan. It is required to be implemented taking the pragmatic view and not on ipse dixit of the Court. Following the same principle, it cannot more so applied on an administrative authority or a Corporation vested with the statutory obligation of providing environmental protection to the residents under its jurisdiction. Sustainable development means that the richness of the earth's bio-diversity would be conserved for future generations by greatly slowing or if possible halting extinctions, habitat and ecosystem destruction, and also by not risking significant alterations of the global environment that might
- by an increase in sea level or changing rainfall and vegetation patterns or increasing ultraviolet radiation - alter the opportunities available for future generations. Sustainable development has been 48 defined in many ways but the most frequently quoted definition is from the Brundtland Report which states as follows:
"Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:
The concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and The idea of limitations imposed by the state of technology and social organisation on the environment's ability to meet present and future needs."
44. The concept of sustainable development is rooted in this sort of systems thinking. It helps us to understand ourselves and our world. The problems we face are complex and serious - and we can't address them in the same way we created them.
45. While applying the concept of sustainable development, one has to keep in mind the "principle of proportionality" based on the concept of balance. It is an exercise in which courts or tribunals have to balance the priorities of development on the one hand and environmental protection on the other. So sustainable development should also mean the type or extent of development that can take place and which can be sustained by nature/ecology with or without mitigation. In these matters, the required standard now is that the risk of harm to the environment or to human health is to be decided in public interest, according to a 'reasonable person's test. (Refer Research Foundation for Science and Technology and Natural Resource Policy v. Union of India (2007) 9 SCR 906; Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664; Chairman Barton: The Status of the Precautionary Principle in 49 Australia (Vol.22) (1998) (Harv. Envtt. Law Review, p. 509 at p.549- A) as in A.P. Pollution Control Board v. Prof. M.V. Nayuder (1999) 2 SCC 718; and M.C. Mehta v. Union of India, AIR 2004 SC 4016. At this stage, we may usefully refer to a very recent judgment of the Supreme Court in the case of G. Sundarrjan v. Union of India & Ors. Civil Appeal No. 4440 of 2013 (Arising out of S.L.P. (C) No. 27335 of 2012), Civil Appeal No. 4441 of 2013 (Arising out of S.L.P. (C) No. 27813 of 2012), Civil Appeal No. 4442 of 2013 (Arising out of S.L.P. (C) No. 29121 of 2012) and Civil Appeal No. 4443 of 2003 (Arising out of S.L.P. (C) No. 32013 of 2012) decided on 6th May, 2013 The Court, while referring to the principles of balance inbuilt in the concept of sustainable development, elaborated the principles as follows:
"228. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society. But, a pregnant one, the present case really does not fall within the four corners of that principle. It is not a case of the land oustees. It is not a case of "some inconvenience". It is not comparable to the loss caused to property. I have already emphasized upon the concept of living with the borrowed time of the future generation which essentially means not to ignore the inter-generational interests. Needless to emphasize, the dire need of the present society has to be treated with urgency, but, the said urgency 50 cannot be conferred with absolute supremacy over life. Ouster from land or deprivation of some benefit of different nature relatively would come within the compartment of smaller public interest or certain inconveniences. But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is taken and there is constant vigil, life of "some" can be in danger. That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution."
46. In view of the above stated principles, which have been applied by the courts and tribunals consistently, let us examine the present case. Even when the hearing of this case had started, it was not certain whether the construction of the plant had been completed and if it was operational or not. A few maps and photographs have been placed before us to show that within a short distance - even less than 500 metres - the Invertis University, hostels of students and other buildings, besides populated villages and water bodies are located, certainly, the plant in question is not the state-of-the-art one. From the photographs that have been placed on record, it is evident that a major part of this plant is open air and the basin pits have also not been prepared as per the Schedule to the MSW Rules. The structure itself is not of the kind which is incapable of being shifted to another place.
47. Moreover, It is bound to have hazardous effects on the health of the residents of the University/villages, some of them being adjacent to the site in question. The site in which the plant is 51 located, is bound to cause pollution of ground water, which is relatively at a higher level, by leaches. This is inevitable especially in the rainy season. The municipal solid waste, which has been dumped in the open area at the site without any laying of impermeable membrane lining. Therefore, the contaminated water is bound to seep into the underground water and even affect the adjoining water bodies apart from affecting irrigation water. Even the dumping sites have not been prepared in accordance with the rules. The foul smell arising from the dumping at the site is bound to pollute the air quality of the area. This bad smell is bound to affect the health of the residents in the vicinity of the site and because of pollution; they would be exposed to diseases like asthma, emphysema and even cancer. Thus, the adverse effects of permitting the plant to carry on its activities at the site in question are bound to cause irretrievable damage to public health and environment. The authorities concerned were requested by different organisations, including the Executive Committee members of the Corporation, the residents of the villages, representatives of the University, Air Force and even other volunteers to shift the site. These protests had taken place even when there was no construction existing at the site. For reasons best known alone to the authorities, and in any case none are reflected from the records before us, the site in question was persisted with in a most unscientific and arbitrary manner. Thus when we apply the principle of balance between the public health and the development and functioning of this project, the answer 52 necessarily has to tilt against the continuation of this plant at the site in question.
48. The Corporation, being a public body, is bound by the principles of public accountability and performance of public duties in accordance with the law of the land. In our considered opinion, the Nagar Nigam, Bareilly, Respondent No.4, has failed to discharge its duties in accordance with the law. Environmental impact, convenience of the residents and ecological impacts are the relevant considerations and all such considerations, in the facts of the case, were weighed against Respondent No.4. The larger public interest must prevail over the narrow end of collection and composting of municipal waste at the site in question. Scientifically, it is not even a comprehensive plant which would help in achieving the objective of collection and disposal of municipal solid waste. Admittedly, neither the plant is site specific nor does it have incinerators to ensure proper treatment and volume reduction and disposal of the municipal waste. It only has a system for bringing the municipal waste at the site for segregation and dumping for composting. Thus, shifting of the plant from the present site at this juncture even would, in no way, tilt the balance against the concept of sustainable development as interests of the citizens who have the Constitutional right to clean environment must prevail over such arbitrary action of the Corporation. Salus populi suprema lex. While applying the principle of balance as a facet of sustainable development, with reference to the facts of the present case, we have to keep in mind the 53 precautionary principle as well. It is better to take precaution today than to suffer the consequences tomorrow. It is the future of thousands of students and residents of the villages which is at stake. There is not even a plausible explanation, much less a definite reason, for Respondent No.4 to show why they could not shift the plant to one of the earmarked sites in the Bareilly Master Plan-2021 keeping in view the MSW Rules, 2000. To us, the public health and future of the coming generations certainly weighs against permitting the MSWM plant to continue at the site in question. We have also examined this case from the view point of economic viability of shifting the unit. In light of the above stated facts and having examined various technical aspects of this case, we are of the considered view that the physical shifting of the plant to another appropriate and approved site would not only be technically, economically and environmentally viable but also in the larger interest of all stakeholders including the Corporation itself.
49. Therefore, we order and direct -
(a) immediate closure of the municipal solid waste management plant at Razau Paraspur, Bareilly;
(b) by a permanent prohibitory injunction, restraining Respondent No.4 from dumping any municipal waste at the site in question;
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(c) by a mandatory injunction, Respondent No.4 to remove all the municipal waste dumped at the site within four weeks from today;
(d) the MSWM plant at Razau Paraspur, Bareilly, to be positively shifted to any appropriate site within the territorial area of the municipality earmarked in the Master Plan-2021 of Bareilly, for that purpose in consonance with MSW Rules, 2000. This shall also be subject to Respondent No.4 obtaining consent of Respondent No.3 as well as obtaining EC from the appropriate authority and in accordance with law.
(e) The MoEF to ensure that the Member Secretary or any other officer of the State Board should not be a Member in the SEIAA, in order to facilitate independent assessment of the projects at the SEIAA level.
(f) Till the above is carried out, Respondent No. 4 may continue to dump Municipal Solid Waste at the existing Solid Waste dumping grounds other than the site in question for which Respondent No. 3 should provide clear guidelines for site preparation, dumping, compaction, soil layering, disinfectant spray etc. forthwith.
(g) The site in question should be restored and developed as per Master Plan 2021.
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50. The application is accordingly allowed in the above terms. We, however, leave the parties to bear their own costs.
Hon'ble Mr. Justice Swatanter Kumar (Chairperson) Hon'ble Mr. U.D. Salvi (Judicial Member) Hon'ble Dr. D.K. Agrawal (Expert Member) Hon'ble Dr. G.K. Pandey (Expert Member) Hon'ble Dr. R.C.Trivedi (Expert Member) New Delhi July 18, 2013 56