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pil33.18
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
PUBLIC INTEREST LITIGATION NO.33 OF 2018
1) Vijay Laxmanrao Dak
Age : Major, Occ : Sarpanch,
At Mandki Post : Palsi,
Tq. Dist. Aurangabad
Mob. 9767961940
Adhar No. 7507588337918.
2) Datta S/o Jijaba Bhesar
Age : 42 years, Occ : Sarpanch,
R/o At Post : Parishi, Mandhaki,
Tq : Dist : Aurangabad
Mob. 8390128011
Adhar No. 783337686764.
3) Mangal Kapurchand Ghunet
Age : 45 years, Occ : Sarpanch,
R/o : At Post : Varur Kaij,
Tq. Dist : Aurangabad
Mob. 9172150404
Adhar No. 593523515896.
4) Bhausaheb Laxman Gayke
Age : 36 years, Occ : Social Worker,
R/o At Post: Palashi,
Tq. Dist : Aurangabad
Mob. 9923315131
Pan No. ANLPG3278N.
5) Sunil S/o Motilal Harme
Age : 38 years, Occ : Sabhapati,
Panchayat Samiti (Aurangabad),
R/o At Post. Pokhri,
Tq. Dist. Aurangabad, Mob. 88064831111
Pan No. ACBPH7367Q.
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6) Anil S/o Ramesh Hirde
Age : 25 years, Occ : Up Sarpanch,
Gopalpur
R/o Gopalpur, Palshi (Shahar),
Tq. Dist. Aurangabad
Mo. 8623952353,
Adhar No. 893500706723,
Pan : AQTPA5213P.
7) Agaji S/o Laxman Ambhore
Age : 52 years, Occ : Social Worker,
R/o: At Post : Mahal Pimpri, Post : Kaij,
Tq. Dist. Aurangabad
Mo. 9422709495
Aadhar : 840487470028
8) Rameshwar K. Late
Age : 40 Occu : Social worker,
R/o Mahd Pimpri Post : Kaij,
Tq. Dist. Aurangabad
Mo. 9823297088
Aadhar No. 425426581171
9) Amol S/o Tejrao Kakde
Age: 37 years, Occ : Sarpanch
R/o : At Pokhri Post : Palshi (Sahar),
Tq. Dist. Aurangabad
Mob. No.9146705111
Pan No. CUAPK6960K.
10) Pundlik Trimbak Ambhore
Age : 60 years, Occu : Ex Sarpanch
Mahalpimpri,
R/o: At Mahalpimpri Post : Warudkazi,
Tq. Dist. Aurangabad
Mo. 9423745365
Aadhar No. 567692119749.
...PETITIONERS
VERSUS
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1) The Union of India
(Through its Secretary)
Ministry of Environment,
Forest and Climate Change
Indira Paryavaran Bhavan,
Jorbagh Road, New Delhi - 110 003
2) The State of Maharashtra
(through its Chief Secretary),
Mantralaya, Mumbai-32.
3) The Principal Secretary
Environment Department,
Mantralaya, Mumbai-32.
4) The Principal Secretary,
Public Health Department,
Mantralaya, Mumbai - 32.
5) The Principal Secretary,
Uraban Development Department,
Mantralaya, Mumbai-32.
6) Maharashtra Pollution Control Board,
Sion, Mumbai - 400 051.
7) The Commissioner,
Aurangabad Municipal Corporation,
Aurangabad.
8) The District Collector,
Aurangabad.
9) The Commissioner of Police,
Aurangabad.
10) Civil Aviation Ministry,
Through it's, Secretary,
Government of India,
Rajiv Gandhi Bhawan,
New Delhi.
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11) Airport Authority of India
Through it's Chairman,
Rajiv Gandhi Bhawan,
Safdarjang Airport,
New Delhi.
...RESPONDENTS
...
Miss. Pradnya S. Talekar Advocate i/b. Talekar
and Associates for Petitioners.
Mr.S.B. Deshpande, Assistant Solicitor
General of Respondent Nos. 1, 10 and 11
Mr.A.B. Girase, Government Pleader for
Respondent Nos.2, 3, 4, 5, 8, 9.
Mr.M.M. Nerlikar Advocate for Respondent No.6.
Mr.R.S. Deshmukh Advocate for Respondent No.7.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 6TH MARCH, 2018 DATE OF PRONOUNCING JUDGMENT: 9TH MARCH, 2018 JUDGMENT [PER S.S. SHINDE, J.]:
1. This Petition is filed with the following prayers :-
"A. To direct to permit inspection of all records available with the respondent No.7 corporation as regards to the arrangements ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:32 ::: pil33.18 5 made, expenses incurred and sanitary and hygienic problems posed by improper disposal of solid waste by the Aurangabad Municipal Corporation, by issuing a writ of mandamus or any other appropriate writ, order or direction as the case may be;
B. To direct the Municipal Corporation, Aurangabad to remove all the waste on the surface and filled below the land surface at Government gairan land situate at Gut No.78 and 79 village Mandki, by issuing a writ of mandamus or any other writ of the like nature;
C. To direct the respondents to ensure that no new solid, dry or wet waste is permitted to be dumped for disposal on the land situate at Gut No.78 and 79 village Mandki, by issuing a writ, order or direction as the case may be;::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:32 :::
pil33.18 6 D. To set up a team of experts from a reputed technology institute for rendering scientific assistance with regard to removal of the waste dump and restoration of the land situate at Gut No. 78 and 79 village Mandki to habitable characteristics.
E. To direct the respondents to take necessary measures after consultation with bio-tech and scientific agencies including Maharashtra Pollution Control Board to reverse the environment impact caused to the land situate at Gut No.78 and 79 villave Mandki and its adjoining area due to the dumping.
F. To direct an inquiry to fix responsibility and institute criminal proceeding for offences committed under the IPC, Bombay Provincial Municipal Corporation Act, 1949 as also the Aircraft ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:32 ::: pil33.18 7 Act, 1934 against responsible officers of the Aurangabad Municipal Corporation and State Government and also for flagrant violation of the statutory obligations, by issuing a writ of mandamus or any other writ of the like nature;
G. To direct the Municipal Corporation to send proposal of alternative site for Solid Waste Disposal in accordance with the provisions of several statutes and rules framed thereunder to concerned departments within a period of four weeks, and further direct the respondent No.1 to ensure that new site for disposal of wastes is searched and selected, necessary land and grants for processing and treatment of waste generation within Aurangabad Municipal area are made available within a time bound schedule, by issuing a writ of mandamus or any other writ of the like nature;::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:32 :::
pil33.18 8 I. To direct the Municipal Corporation to ensure implementation of the guidelines issued by the Hon'ble Supreme Court and this Hon'ble High Court as well as Rules of 2016 with regard to segregation of waste by evolving a strict policy of monitoring and imposing penalty against wrongdoers.
K. Direct the respondents to grant free full body medical checkup to all residents of the 5 villages based on the gram panchayat voting list and grant compensation commensurate to the ill-
effects to their health, by issuing a writ of mandamus.
L. Direct the respondent No.7 to provide clean drinking water to the villages of Pokhri, Mandki, Mahalpimpri, Gopalpur and Palsi from the AMC pipe line passing through these, by issuing a writ of mandamus or any other necessary order, ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 9 writ, direction as the case may be.
2. It is stated by the Petitioners in the Petition that they are residents of addresses mentioned in the title cause. They are representing thousands of villagers of Petitioner Gram Panchayats against the illegalities committed by Aurangabad Municipal Corporation (for short "AMC") in dumping solid waste without processing and treating, at the land bearing Gut Nos. 78 and 79 situate at village Mandki. The Petitioners are acting as pro bono publico. It is also stated that the Petitioner Nos.1 to 5 are the office bearers of the Gram Panchayat of villages of Mandki, Gopalpur, Pakhri and Mahalpimpri and Petitioner Nos.6 to 10 are reputed persons and social workers residing at the villages adjoining the land bearing Gut Nos.78 and 79 which is used as dumping ground for solid waste generated in AMC limits. None of the Petitioners have any criminal antecedents.
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3. It is submitted that the Petitioners have made several representations to the Respondent authorities for redressal of their grievances in last 35 to 40 years, however, the Respondent authorities and in particular Respondent No.7 have utterly failed to redress their grievances and therefore this Petition is filed.
4. The brief facts leading to file the Petition, in brief, are as under :- (A) The entire area of the AMC is 138 sq. km. which is divided in 8 zones and 83 wards. Aurangabad is one of the largest growing cities in the State in as much as the population has nearly doubled from 1991 to 2001 and from 2001 to 2011 as is evident from the census report. The development in industries in pharmaceuticals, auto, spare parts etc as well as the urban migration has led to a troubling increase in the solid waste generation in the city.
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pil33.18 11 (B) At present the daily solid waste generation is nearly 400 MT out of which 160 MT is domestic waste whereas the rest is commercial and industrially generated. Nearly 61% of this waste is bio-degradable whereas the rest is either construction material, metal, plastic or glass. These details of the current solid waste generation of Aurangabad Municipal region are evident from the statistics maintained and recorded in a proforma by the National Solid Waste Association of India (NSWAI) as well as a research paper published in 2016 issue of IOSR Journal of Mechanical and Civil Engineering (IOSR-JMCE). (C) Proper solid waste disposal in compliance with the Solid Waste Management Rules, 2016 or Municipal Solid Wastes (Management and Handling) rules, 2000 is not carried out by the AMC whereas the entire waste is only being dumped for decades together in a dumpyard situate at Gut No.78 and 79 of the village Mandki which is Government Gairan land at stone throw away from the habitation of ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 12 villages of Mandki, Gopalpur, Pakra, Mahalpimpri and Palashi.
(D) Prior to 1980's the entire solid waste of the municipal region of Aurangabad was dumped at a site at City Naka behind Mahatma Gandhi Mission College. However, after 1980-81, the planning authority shifted the dumpyard to Gut No.4 in village Naregaon which was then outside the municipal limits of Aurangabad. In less than 2 years, when the Municipal Council was transformed into a Corporation subsuming within it many sub- urban areas, the gram panchayat of Naregaon was also subsumed in the Aurangabad Municipal Corporation. Immediately thereafter, a decision was taken to shift the dumpyard few kilometers away from the then site at Gut No.4, village Naregaon to take it beyond the city limits of AMC. It was then that the 50 acre Government gairan land situate at Gut No.78 and 79 in Mandki village was targeted by the AMC for dumping the entire waste of the city.
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pil33.18 13 (E) It has been more than 35 years since the entire waste generated in the municipal limits of the AMC is merely collected by the AMC and dumped at the 50 acres land situate at Gut No.78 and 79 in village Mandki.
(F) The Rules of 2000 as well as Rules of 2016 mandate that the disposal of solid waste has to involve various stages of collection, segregation, processing and treatment to ensure limited impact on environment. It is mandatory for the planning authority to get a site identified and approved from the Ministry of Environment and Ministry of Urban Development Department after clearance from the Maharashtra Pollution Control Board to use a site as Solid Waste Land-fill (SWL) or as Solid waste treatment plant. (G) Public Interest Litigation No. 152/2016 was filed seeking shifting of the dump-yard from Naregaon to another site, the Regional Officer of ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 14 the Maharashtra Pollution Control Board (MPCB), submitted his affidavit-in-reply to this Court stating that the Municipal Commissioner, Aurangabad Municipal Corporation has not obtained necessary authorization from the board and also not provided any facility for Municipal Solid Waste Management (and handling) Rules, 2000. (H) The 73rd and 74th amendment to the Constitution of India introduced a system of local self governance and led to decentralisation of power and trickling down of decision making to the people and their direct representatives. Thus it is under the constitutional scheme of self- governance and decentralisation of power that institutions such as the Gram Panchayat were constituted and empowered to collect taxes and take representative decisions for the people living in the area of the local body. (I) The land situate at Gut No. 78 and 79 of the village Mandki is within the gram panchayat ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 15 area of Mandki village and the same is gairan land to be used for grazing of milking animals and livestock of the villagers of Mandki. However, the same is being illegally used as dump-yard for solid waste generated within the AMC limits, that too without obtaining necessary no-objection from the Gram Panchayat.
(J) The present dump-yard is less than 4 kms from the Aurangabad Airport which has daily 3-4 flights. The Airport Authority of India Act, 1994, the Aircraft Act, 1934 and Aircraft Rules 1937 mandate that the solid waste shall not be accumulated in vicinity of the Airport so as to prevent hovering of vultures and other scavenging birds or smog from the burning of waste leading to flight accidents. Under section 10 (1A) of the Aircraft Act 1934 contravention of Rule 81-B of the Aircraft Rules 1937 is punishable offence. A notice in that regard had been issued by the Airport Authority of India on 11.01.1997 and published in Times of India.
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pil33.18 16 (K) Thus it is clear that the AMC is illegally dumping entire solid waste generated in the Aurangabad municipal limits in the 50 Acre site near village Mandki and Gopalpur, without necessary approvals under the law.
5. The Submissions made by the learned counsel appearing for the Petitioner, can be stated as follows:
(a) The dumping of the solid waste for decades together without any processing or treatment in a residential area not even a stone throw away from thick habitation of nearby villages, has already poses fatal health hazards to the villagers.
(b) For more than 40 years the solid waste including industrial and hospital/medical waste is being dumped in the land adjoining the villages of the petitioner gram panchayats and piled up in ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 17 garbage mountains 70-80 ft height running into 15 kms of stretch. The garbage being stagnant for decades together has become like sedimentary rocks and is constantly put ablaze when new waste is dumped. So the monstrously large garbage mountains are set ablaze to emit poisonous fumes and fugitive gases. So also, the large amount of waste filled in the land by digging out 10 acres of pits in plastic has caused severe contamination of water leading to serious water borne diseases.
(c) Constant contact with contaminated air and water has led to serious health issues to all villagers residing in the petitioner gram panchayats including weak lungs and liver. Not only that but it is also leading to birth of deformed and malnourished and ill-immunized children raising the child mortality ratio.
(d) The serious ill effects of the constant exposure to contaminated air and water has medically changed the hormonal and blood ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 18 constitution of the villagers in the petitioner gram panchayats and is bound to have an ill-effect on their future generations as well.
(e) Such illegal action by the AMC is the brutalest violation of human rights of the class of people who do not have a strong voice and a grave pity to our democratic governance.
(f) The petitioners have been fighting this situation and standing up against the illegalities committed by the AMC for more than 30 years now, however, in vain.
(g) The petitioners have made several representations, conducted meetings with political leaders, government officials and AMC personnel, and undertaken protests, however, to no avail.
(h) Few of the petitioners have been personally involved in the movement since last 25 years in which they have made it a purpose of ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 19 their life to stop the brutalities in trampling the survival needs of the villagers and their future generations by accumulating thousands of tonnes of solid waste emitting fugitive gas fumes and contaminating the ground-water leading to deformed and malnourished children and causing fatal health hazards to the villagers.
(i) A mass scale protest was conducted by the villagers of the petitioner gram panchayats nearly 25 years earlier, when it was assured that immediate action will be taken by the AMC to initiate a processing and treatment plant at the writ land. The said initiative was allotted to one Satyam Fertilizer Company run by one Satyanarayan Chandak which constructed a treatment plant at the site to re-use the bio-degradable waste. However, it was a hoax only to grab the subsidy made available by the Central Government and the same was closed down in less than 2 years time.
(j) Thereafter again in the year 2010-11, the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 20 AMC had spent nearly INR 10 Cr to undertake land filling at the writ land wherein 2 large pits of 5 acre each were dug out and most of the waste was filled under the ground in plastic. The work was undertaken by the Mule builders and no procedure for landfilling including segregation and processing was followed rather the entire waste was mechanically dumped under the ground further affecting the contamination levels of the ground- water and soil.
(k) In 2013 another mass protest was undertaken by the villagers wherein the Municipal Corporation had assured that the waste is going to be shifted to an alternate site and the same is at the last stage of finalization.
(l) In October 2017, the villagers of petitioner gram panchayats had come together and blocked the trucks and tractors with solid waste from dumping it in the writ land. This protest and blocking continued for 3 days after which a ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 21 settlement was reached wherein the AMC had assured that it would shift the dumpyard to alternate site within a period of 3 months. When the same was not completed even after a period of 3 months, the villagers have restarted the protest and blocked the trucks and tractors from dumping the solid waste at writ land since 16.02.2018. Since the last 10 days, the entire solid waste from the municipal limits of Aurangabad is being stored at several places in the city and not dumped in the land situated at Gut No. 78 and 79 at village Mandki. It is owing to this situation that a petition was filed by one Rahul Kulkarni seeking direction from this High Court that the waste shall be dumped at 'appropriate place'.
(m) There is immense pressure on the AMC to remove the waste from the city limits and it does not have an alternate site to be used as dump- yard, thus the AMC is creating untellable pressure on the petitioners to withdraw its protest and allow continuation of dumping of solid wastes at ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 22 land bearing Gut No. 78 and 79 in village Mandki, so much so that the Petitioners were threatened by the Sub-Divisional Magistrate to withdraw the protest or suffer serious consequences including physical danger to their lives. A complaint detailing the horrifying account of a Government official meting out threats to the Petitioners was made to the Police Station In-charge, Chikalthana Aurangabad on 02.02.2018.
(n) Not only the present generations of the villagers residing in the 4 gram panchayats adjoining the land bearing Gut No. 78 and 79 situate at Mandki are suffering from the serious health ailments owing to constant exposure to contaminated air and water, but their future generations may be affected owing to passing of genetic defects and has increased child mortality rates in the region.
(o) The intentional pollution of clean environment of villages for selfish and myopic ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 23 purpose of dumping solid waste generated by the domestic, industrial, commercial, hospital and construction activities within AMC limits without taking adequate case to establish processing and treatment plants to dispose the waste in accordance with the Rules and directions of Hon'ble Supreme Court and High Court of Bombay in several cases touching the subject-matter, is nothing but the most brutal violation of human rights and a shame for Indian democracy and governance.
(p) The Petitioners are agitating flagrant and intentional violation of their right to life by being pushed into constant exposure to severely contaminated air, water and soil guaranteed by the Constitution under Article 21.
(q) Similarly, the AMC and the State and Union have shirked away their constitutional and statutory obligations by continuing illegal dumping of solid waste without necessary treatment ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 24 and violated Art. 47, 48-A, 51-A(g) of the Constitution, Chapter XVIII of the Bombay Provincial Municipal Corporation Act, 1949 and section 10(1A) of the Aircraft Act, 1934 and Rule 81-B of the Aircraft Rules, 1937.
(r) For the last 33 years the solid Municipal waste from the entire Aurangabad Municipal Corporation Region was being dumped in mixed condition at the site, which had been proposed to be used as a composting site, and was outside the Corporation limits in village Mandki. The Aurangabad Municipal Corporation could not have used the said site outside its limits and within the limits of village Mandki without the prior sanction of the Gram Panchayat.
(s) The State of Maharashtra as well as the Aurangabad Municipal Corporation has vehemently contended that 50 Acres land in village Mandki is owned by the Aurangabad Municipal Corporation. However, 7/12 extract annexed with the Petition ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 25 suggests that the lands are Government Gairan lands. The Government Resolution dated 12.07.2011 mandates that prior to any allocation of the Government Gairan land, there shall be a Resolution of the Gram Panchayat or Gram Sabha.
(t) A copy of the Government Resolution dated 12.07.2011 is a part of the compendium II of additional documents at serial No.13 from pp.588 to 592, whereas copies of communication between the District Collector, Aurangabad and the Divisional Commissioner, Aurangabad dated 18.03.1989 showing that the Gram Panchayat had not granted any NOC and a communication dated 14.11.2011 addressed by an Advocate to the Assistant Director, Town Planning stating that in the issue of mutation of the name of Aurangabad Municipal Corporation in the 50 acre Government Gairan land at Mandki, there is no document allotting land in the file of the Aurangabad Municipal Corporation or the Divisional Commissioner, rather only a communication ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 26 recommending allotment.
(u) It has been submitted across the bar by the counsel appearing for the Corporation that currently there is nearly 20,00,000 cubic ton solid waste in mixed condition lying at the dump site, whereas in 2008-09 by way of development of sanitary landfill constructed by Contractor namely Mule Brothers and Nirman Construction an equal amount of mixed solid waste was dumped beneath the ground.
(v) It was the duty of the Secretary, Urban Development Department under SWM Rules, 2016 under 11 [f] reproduced as under to:
(f) ensure identification and allocation of suitable land to the local bodies within one year for setting up of processing and disposal facilities for solid wastes and incorporate them in the master plans (land use plan) of the State or as the case may be, cities through ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 27 metropolitan and district planning committees or town and country planning department;"
. Whereas it is the duty on the District Collector or Divisional Commissioner to facilitate in the same as per Rule 12. Similarly, it is required under Rule 11 [1] as under:
"(1) notify buffer zone for the solid waster processing and disposal facilities of more than five tons per day in consultation with the State Pollution Control Board;"
. The same is not possible to be done at the present dump site as there is a School as well as residential tenements right next to the dump site. Thus, processing the waste in the present site is not permissible under the Rules. (w) The waste cannot either be accumulated or processed at the dump site as per the SWM Rules, 2016 and Aircraft Act, 1934 and Rules, 1937 which demand that even for processing site which ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 28 requires using the lying tonnes of garbage to be first attempted to be segregated and thereafter converted into manure or wind-rowed and land- filled, the distance from Airport has to be more than 20 kms. Otherwise, the collected waste which often leads to fires causing a heavy smoke and smog in the close vicinity of the airport causing obstruction in take off and landing aircrafts which may lead to accidents causing deaths of hundreds of people. Similarly, the vultures and other scavenging birds is another risk to the take off and landing aircrafts if waste is allowed to accumulate in vicinity of the Airport. It is owing to these reasons that a notice had been issued by the Airport Authority of India in 1997 with regards to the prosecution under Aircraft Act, if the waste dumping is not immediately stopped.
(x) It is in light of these legal considerations that the processing plant cannot be constructed at the dump site and the entire waste ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 29 will have to be transported to another location where it can be safely processed. (y) Further, land fill is even more so illegal in the present dump site and it will be necessary to remove the same from the present dump site, as it was without authorisation from the MPCB and post-facto approval cannot now be sought to be given as it does not meet the criteria of site selection which requires a minimum 500 mtr distance from the residential area and 20 kms from airport.
(z) The residents of the villages surrounding the present dump site, have been exposed to severe air pollutants and continual intake of contaminated drinking water rising mortality risks from cancer of liver, pancreas, kidney, lungs, other respiratory diseases, increased infant mortality rate owing to effect on pregnancy and deformities in new borns. There are several studies conducted and published in International ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 30 Journal of Epidemiology and other reputed journals showing findings of diseases and risks attached to staying in vicinity of land fill sites which are placed on record in II compendium of additional documents. The residents of village Mandki and others have faced much worse by being exposed to open dump which is several times more dangerous. Similarly, there are studies about the microbiological content of the ground water at the dump site and its ill-effects, the same is placed on record in compendium I of additional documents. (aa) It is necessary for the State Government and AMC to ensure that the harmful effect of the illegal dumping for decades together and land fill without authorisation and in flagrant violation of norms, shall have to be reversed so as to ensure clean water and air is afforded by the villagers. Till, the same is done, the provision of clean drinking water shall be done to the villagers from the pipeline of the AMC that passes through the village.
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pil33.18 31 (bb) The residents of the village of Mandki and nearby villages had caused many andolans and protests for the purpose of stopping the dumping of waste at the dump site in their village, right from 1990 onwards. Several groups of villagers have conducted meetings with political persons, Municipal Commissioner, District Collector and Divisional Commissioner, details of which are mentioned below:
Protest by Date of meeting Met with Shri. Mahadev December 1998 Then AMC Suryavanshi officials [Corporator] and including others Commissioner
Shri Bhagwan Ragde December 2003 and in Then AMC [Corporator] and 2006 officials others including Commissioner Shri Bhausaheb 2011, 2012 Then AMC Gaike and others officials including Commissioner Shri Manish June 2013 Shri. Dahinde Harshwardhan [Corporator] and Kamble others [Commissioner] and with Shri Chandrakant Khaire [MP] ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 32 Shri Gokul Malke 2016 Shri. Kendrekar [Corporator] and [Commissioner] others Shri Dr.Vijay Dak 13.10.2017 and again Speaker and others in 16.02.2018 to Maharashtra till date Legislative Assembly - Shri Haribhau Bagde [Nana] Commissioner of AMC and Mayor, Dy.Mayor of AMC also present Assured that within three months time that the waste will be shifted out of Naregaon.
. There were several other protest, and constant assurances of shifting the waste, details of which could not be gathered in the short span. (cc) The State Government in the affidavit filed through the Chief Secretary has submitted that the time line for sanction and release of funds in one table and activities in another table, the Petitioners shall respond to both ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 33 separately as follows:
(dd) With regards to the time-line regarding sanction and release of finances, it is necessary that prior to the revised detailed Project Report [DPR] dated 08.03.2018, that there has to be separate site selection for [i] composting; [ii] dry waste sorting and recycling; [iii] processing / treating old waste; [iv] land-fill for new reject waste. The site selection for these activities with relation to the municipal solid waste management has to be done in accordance with the Rules of 2016 and the Urban Development Department Guidelines under Swachha Bharat Mission, by a scientific methodology. (ee) Currently the Aurangabad Municipal Corporation is only focusing on locating a site for dumping mixed waste being generated in the city, which is only magnifying the problem that lies upon the city. There is no site selection for [i] composting; [ii] dry waste sorting and ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 34 recycling; [iii] processing / treating old waste; and [iv] land-fill for new reject waste. Even no mechanism is in place regarding consulting NEERI or any other body with expertise like the Supreme court constituted body for Waster Management, IIT or TISS which may help in infrastructure needed for the site-selection for these activities. The Bombay High Court at the Principal Seat in the order dated 04.02.2016 in Civil Application No.3184 of 2015 in Writ Petition No.8445 of 2015 has recorded the report submitted by IIT Bombay to recommend the waste disposal mechanism to be used in Mira-Bhayandar Municipal Corporation, on a direction by the Hon'ble Court. The judgment is at serial No.6 in compendium of judgments at page Nos.20 and 21.
(ff) The distribution of funds as provided in para 5 [ii] [f] is 35% by Central Government and 23.3% by State Government, thus 58.3% is borne by either the State or Central Government, and rest is to be borne by the ULB i.e. the Urban Local ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 35 Body, however, no mention is made about the adequacy of funds with the Aurangabad Municipal Corporation. Similarly, if the funds are received only by 21.03.2018 and 30.04.2018, no real work for any of the waste disposal efforts can be possible prior to that. With the current situation, it is necessary to immediately invite the tenders or enter into private treaty contracts with reputed agencies for installing/constructing the decentralized compost pits, bio-gas plant, decentralised dry-waste sorting and recycling center and land fill site, after scientific site selection.
(gg) With regards to the time-line for the waste disposal activities, which is as follows: [i] It is the stand of the Aurangabad Municipal Council that transportation and collection is being done in all wards, whereas the segregation is done in 81 out of 115 wards, then no question arises of 3 months time required for ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 36 mere segregation in all 115 wards. It is utmost essential to start 95-100% segregation of bio- degradable and non-bio degradable waste immediately at war-footing, if necessary by using penal action to ensure 100% segregation so as not to escalate the problem of disposing mixed waste. [ii] The Rules of 2016 more specifically Rule 15 [m], [q], [u] and [v] mandate decentralised composting so as to ensure civic responsibility upon each resident to segregate waste, failing which they would be immediate affected persons. However, the affidavit has vaguely stated centralised / decentralized composting without giving any details of how it will be decentralised. There are several vacant lands in each ward which may be used for composting purposes if it fulfills all the criteria mentioned under the Rules, 2016.
[iii] It is required for scientific selection of site for both bio-gas plant and scientific ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:33 ::: pil33.18 37 land-fill, after which the construction and development shall not take more than 3-4 weeks. Thus, this time is also required to be reduced in light of the contravention of the time-line as suggested in the SWM Rules, 2016 as well as judgment and order of the High Court at Principal seat dated 02.04.2013 in the matter of Vinay Tatke at serial No.10 in the compendium of judgments. (hh) With regards to scientific closing down the dump site at Naregaon, the time of 12 months is not permissible as the assurance to do the same is being given from 1996 onwards whereas the Court direction in that regard in the Writ Petition of 2002 was also long passed and continuation of the dump site at Naregaon after 2004 January is in fact action in contempt of the orders of this Court. Since the processing has to be conducted at a suitable site as per Rules of 2016, the transportation of the waste shall be started immediately to the scientifically selected site and the land fill be dug out and restored to its ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 38 natural state within period of 3 months.
6. With the above submissions, learned counsel submitted that the Petition deserves to be allowed. Learned counsel in support of her aforesaid contentions, placed reliance upon the exposition of law in the case laws viz. [i] Amit R. Goenka Vs. Municipal Corporation of Greater Bombay1, [ii] The Calcutta Law Journal [Pvt] Limited Vs. The Kolkata Municipal Corporation and ors.2, [iii] Almitra H. Patel and another Vs. Union of India and others3, [iv] Kaustubha Dattatraya Gokhale and others Vs. State of Maharashtra and others in Public Interest Litigation No.182 of 2009, decided on 13th April, 2015, [v] Kaustubha D. Gokhale & Ors. Vs. State of Maharashtra & Ors. in Public Interest Litigation No.182 of 2009, decided on 7th October, 2016, [vi] Mira Bhaindar Municipal Corporation Vs. Nagari Hakka Sangharsh Samiti4, [vii] Dr.Harshwardhan 1 2016 SCC Online Bom.11197 2 2014 SCC Online Cal 17264 3 [1998] 2 SCC 416 4 2016 SCC Online Bom. 1208 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 39 Madhusudhan Modak & Anr. Vs. Pune Municipal Corporation & Ors.5, [viii] Almitra H. Patel and another Vs. Union of India and others 6, [ix] Municipal Corporation of Greater Mumbai Vs. Shri Pandurang Patil and another in Civil Application No.221 of 2013 in Public Interest Litigation No.217 of 2009, decided on 26th and 29th February, 2016, [x] Vinay Laxman Tatke Vs. The Navi Mumbai Municipal Corporation and others in Writ Petition No.1740 of 1998 along with connected matters, decided on 2nd April, 2013, [xi] Paryavaran Suraksha Samiti and another Vs. Union of India and others7, [xii] A.P.Pollution Control Board II Vs. Prof. M.V.Nayudu [RETD.] and others8, [xiii] Research Foundation for Science Vs. Union of India and another9, [xiv] Amarnath Shrine, In Re Vs. Union of India and others10 and [xv] N.D.Jayal & another Vs. Union of India and others11. 5 2016 SCC Online Bom. 8941 6 [2000] 8 SCC 19 7 [2017] 5 SCC 326 8 [2001] 2 SCC 62 9 [2005] 13 SCC 668 10 [2013] 3 SCC 247 11 [2004] 9 SCC 362 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 40
7. Learned counsel also invites our attention to the compendium, running into two volumes and submits that various studies have demonstrated the ill-effect of dumping solid waste for years together and its impact upon the environment, drinking water, birds and animals. Learned counsel invites our attention to the report of the study undertaken by one Mohammed Asef Iqbal, Ph.D. Student of Dr. Babasaheb Ambedkar Marathwada University, Aurangabad, wherein it is stated that, with the passage of time the MSW dumping site is increasing the pollutant load in the soils, which in course of time percolates down the ground to reach the underground waters and pollute them. Therefore, learned counsel submits that the Petition deserves to be allowed.
8. Mr. A.B. Girase, learned Government Pleader appearing for the State invites our attention to the averments of the affidavit in reply filed on behalf of Respondent State and its ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 41 officials. He further invites our attention to the contents of the affidavit of Chief Secretary to the Government of India, which is annexed with the affidavit in reply, and fairly states that, the State Government is determined to address the issues raised in the PIL and the State Government has taken effective steps as it is evident from the averments in the affidavit in reply and the affidavit filed by the Chief Secretary. He submits that pursuant to the order dated 28th April, 2003, passed by the Division Bench of this Court (CORAM: A.B. NAIK AND N.H. PATIL, JJ) in Writ Petition No.3253 of 2002, and the order dated 7th July, 2003, passed by the Division Bench of this Court (CORAM: B.H. MARLAPALLE & P.V. KAKADE, JJ.) in the said Writ Petition No.3253 of 2002, and also the statement made by the then Government Pleader before the High Court, the State Government processed the relevant papers/ file and in the year 2005 ear-marked the land and possession of the said land was given to the Municipal Corporation. However, he submits that what steps ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 42 have been taken by the Corporation further needs to be inquired into. He submits that in case the Corporation has not taken the steps keeping in view the MSW Rules of 2000 and also Solid Waste Management Rules, 2016 and various Government Resolutions, Circulars, guidelines issued from time to time, in that case it would not be in the interest of public at large residing in the vicinity of villages Mandki, Gopalpur, Pakhri and Mahalpimpri to continue the dumping of solid waste/ garbage at Gut Nos.78 and 79 of village Mandki.
9. Mr. Deshpande, learned A.S.G. appearing for Respondent Nos.1, 10 and 11 submits that the Petition is premature. He submits that it is true that the site of Gut Nos.78 and 79 of village Mandki is within the radius of 10 Kms. from the Airport, however the permission can be obtained from the authorities prescribed under Rule 91 of the Aircraft Rules, 1937.
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pil33.18 43
10. Mr. Nerlikar, learned counsel appearing for Respondent No.6 invites our attention to the show cause notice issued to the Municipal Commissioner, Aurangabad Municipal Corporation on 20th November, 2017 by Member Secretary, Maharashtra Pollution Control Board, as to why prosecution under Section 37 read with section 21 and 31A of the Air (Prevention and Control of Pollution) Act, 1981 and under Section 15 of the Environment (Prevention and Control of Pollution) Act, 1986 read with Solid Waste Management Rules, 2016 shall not be launched against him and Municipal Corporation of Aurangabad as well as person who are responsible for day to day affairs of the Corporation. He also invites our attention to another show cause notice issued to the Commissioner, Aurangabad Municipal Corporation on 27th February, 2018 by Dr. J.B. Sangewar, Regional Officer, Maharashtra Pollution Control Board, Aurangabad and submits that it is specifically stated in the said notice that Municipal Corporation is not serious about the pollution ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 44 control and is contravening provisions of various environmental enactments knowingly and willfully. Learned counsel further submits that it is also stated in the said notice that inspite of repeated instructions given by the Board to the Corporation authorities, till date the Corporation has not submitted No Objection Certificate from District Level Site Selection Committee to the Board for Naregaon/Mandki site, and that the Corporation authorities have not submitted any proposal for alternative site for the scientific treatment and disposal of municipal solid waste.
11. Mr. R.S. Deshmukh, learned counsel appearing for Respondent No.7 Municipal Corporation submits that Corporation has taken effective steps time to time to collect, transport and properly dump the solid waste/ garbage at Gut Nos.78 and 79 of village Mandki. It is submitted that the Commissioner of Municipal Corporation has already replied the show cause notices. He submits that recently Corporation has taken effective ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 45 steps so as to implement the Solid Waste Management Rules, 2016. It is submitted that the Petition is premature. During the course of arguments, he invites our attention to various steps taken by the Corporation and submits that the Corporation may be allowed, at least for further three months, to dump the new solid dry or wet municipal waste at Gut Nos.78 and 79 of village Mandki. He submits that the Corporation has decided to set up plant/ machinery keeping in view the Solid Waste Management Rules, 2016 for segregation and composting of wet waste and also to take measures such as Bio-gas plant, centralizing process facility, scientific landfill and all other necessary steps. He submits that even the Chief Secretary to the Government of Maharashtra has filed the affidavit stating the time limit in the said affidavit for taking all necessary steps in that behalf, within eight months. He further submits that the State Government and Corporation would ensure that scientific closure of legacy dump at Naregaon is ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 46 complete within 12 months.
12. We have carefully considered the submissions of the learned counsel appearing for the Petitioner, learned Assistant Solicitor General appearing for the Respondent Nos.1, 10 and 11, learned Government Pleader appearing for the State and its officials, learned counsel appearing for Respondent No.6 - Maharashtra Pollution Control Board and learned counsel appearing for Respondent No.7 - Aurangabad Municipal Corporation. With their able assistance, we have perused the grounds taken in the Petition, annexures thereto, various reports, reported Judgments relied on by the counsel appearing for the respective parties and the affidavit in replies filed on behalf of the respective Respondents.
13. It is not in dispute that after 1980-81 Respondent No.7 shifted the dumpyard to Gut No.4 in village Naregaon which was then outside the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 47 municipal limits of Aurangabad. Thereafter Municipal Council was transformed into a Corporation subsuming within it many suburban areas and the Gram Panchayat of Naregaon was also subsumed in Aurangabad Municipal Corporation. Thereafter dumpyard was shifted few Kilometers away from the then site at Gut No.4 of village Naregaon to take it beyond the city limits of Aurangabad Municipal Corporation on 50 acre Government Gairan land situate at Gut Nos.78 and 79 in Mandki village for dumping the waste of Aurangabad city. Undisputedly, for more than 35 years the waste generated in the municipal limits of the AMC Is merely collected by the AMC and dumped at 50 acres land situate at Gut Nos.78 and 79 of village Mandki. Though Government Resolution dated 12th July, 2011 issued by the Revenue and Forest Department of the Government of Maharashtra mandates that 'no objection certificate' should be taken from the concerned Gram Panchayat, the same was not taken. Respondent No.7 did not bother to take no objection certificate from ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 48 the concerned Gram Panchayat. As rightly submitted by learned counsel appearing for Respondent No.6 that from the year 2004 Respondent No.7 had never shown seriousness to follow the provisions of the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act,1986, Solid Wastes (Management and Handling) Rules, 2000, Solid Waste Management Rules, 2016, the Water (Prevention and Control of Pollution) Act, 1974 and continued the activity of dumping the solid waste/ garbage at Gut Nos.78 and 79 of village Mandki. No document is placed on record by Respondent No.7 which would demonstrate/ show that Respondent No.7 had taken 'No Objection Certificate' from Respondent No.6 from the year 2004 onwards. The provisions of relevant Act mandates that such 'No Objection Certificate" is required to be taken. The Supreme Court in the case of Paryavaran Suraksha Samiti and another vs. Union of India and others12, has taken a serious view of not obtaining consent to operate by the 12 (2017) 5 SCC 326 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 49 industry from the competent authority. It would be gainful to reproduce herein below Paragraph Nos.4, 8 and 12 from the said Judgment, which reads thus:
"4. The question that arises for our consideration is, whether the same is maintained in good order, after the industry itself has become functional. The industry requiring "consent to operate", can be permitted to run, only if its primary effluent treatment plant, is functional. We, therefore, consider it just and appropriate, to direct the State Pollution Control Boards concerned, to issue notices to all industrial units, which require "consent to operate", by way of a common advertisement, requiring them to make their primary effluent treatment plants fully operational, within three months from today. On the expiry of the notice period of three months, the State Pollution Control Board(s) concerned are mandated to carry out inspections, to verify, whether or not, each industrial unit requiring "consent to operate", has a functional primary effluent treatment plant. Such of the industrial units, which have not been able to make their primary effluent treatment plant fully ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 50 operational, within the notice period, shall be restrained from any further industrial activity. This direction may be implemented by requiring the electricity supply and distribution agency concerned, to disconnect the electricity connection of the defaulting industry. We, therefore, hereby further direct that in case the State Pollution Control Boards concerned make a recommendation to the electrical supply and distribution agency/company concerned, to disconnect electricity supply to an industry, for the reason that its primary effluent treatment plant is not functional, it shall honour such recommendation, and shall disconnect the electricity supply to such defaulting industrial concern, forthwith.
8. In view of the fact that the financial position has been taken care of, as has been expressed above, we are of the view, that the setting up of "common effluent treatment plants", should be taken up as an urgent mission. With reference to common effluent treatment plants, which are already under implementation, we hope and expect that they would be completed within the timelines already postulated. With reference to common effluent ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 51 treatment plants, which are yet to be set up, we consider it just and appropriate to direct the State Governments concerned (including the Union Territories concerned) to complete the same within a period of three years, from today. We are also of the view that while acquiring land for the "common effluent treatment plants", the State Governments concerned (including the Union Territories concerned) will acquire such additional land, as may be required for setting up "zero liquid discharge plants", if and when required in the future.
12. We are of the view that in the manner suggested above, the malady of sewer treatment, should also be dealt with simultaneously. We, therefore, hereby direct that "sewage treatment plants" shall also be set up and made functional, within the timelines and the format, expressed hereinabove.
14. In the facts of the present case, Respondent No.7 has not obtained no objection certificate from Respondent No.6 since the year 2004 onwards and in breach and utter disregard of ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 52 relevant provisions of the Air (Prevention and Control of Pollution) Act, 1981, the Environment (Protection) Act,1986, Solid Wastes (Management and Handling) Rules, 2000, Solid Waste Management Rules, 2016 and the Water (Prevention and Control of Pollution) Act, 1974 continued to dump the solid waste/ garbage at Gut Nos. 78 and 79 of village Mandki.
15. At this juncture, it would be relevant to make reference to the order dated 28th April, 2003, passed by the Division Bench of this Court (CORAM: A.B. NAIK AND N.H. PATIL, JJ.) in Writ Petition No.3253 of 2002 (Dr. Shaikh Mohammed Shafeeque Ahmed and another vs. The Municipal Corporation of City of Aurangabad and others), which reads as under:-
" Mr.E.P. Sawant, learned Government Pleader for respondent-State, has produced before us the proposal submitted by the Collector, Aurangabad to the Divisional Commissioner, Aurangabad Division, ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 53 Aurangabad, regarding acquisition of land and shifting of Solid Waste Project at village Karodi.
2. Having heard the learned Advocates appearing for the respective parties, we are of the view that the question involved in this Petition is of public importance and some urgency will have to be shown by all the concerned. As the proposal is now received by the Divisional Commissioner, Shri E.P. Sawant, assures that within one week from today, the Commissioner will forward the proposal to the Government, for its consideration. On receipt of the proposal, the Government shall decide the issue involved and pass an appropriate order.
3. Place this Petition for further orders on 30th June, 2003."
16. Further order dated 7th July, 2003 passed by the Division Bench of this Court (CORAM: B.H. MARLAPALLE AND P.V. KAKADE, JJ.) while disposing of the said Writ Petition No.3253 of 2003, reads thus:
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pil33.18 54 "Heard.
It is evident that the proposal to provide for a dump yard is pending with the State Government and the land located near Village Karodi, Gat.No.135 admeasuring 100 acres in Aurangabad Taluka, which was demarked by the local administration has been objected to by the Village Panchayat of Karodi.
We are also informed that the said Village Panchayat has already lodged its objections before the appropriate forum. Ultimately, it is the State Government, which has to take a decision either in finalizing the land recommended by the Divisional Commissioner, Aurangabad or some other land, taking into consideration the proposal submitted by the Municipal Corporation, Aurangabad.
We direct that the issue be finalized as expeditiously as possible and preferably within a period of six months, after hearing all the concerned.
Petition disposed of accordingly.
C.A. does not survive."::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 :::
pil33.18 55
17. Learned Government Pleader, during the course of hearing informed this Court that pursuant to the directions contained in said order dated 7th July, 2003, reproduced above, the State Government not only finalized the site, but possession of the land was also handed over/ given to the Corporation in the year 2005 itself. It appears that Respondent No.7 did not take further steps pursuant to the said order passed by the Division Bench of this Court and continued to dump solid waste/ garbage in utter disregard to the relevant provisions of the concerned Acts and the Rules of 2000 and the Rules of 2016, till the citizens/ villagers of the afore mentioned villages protested in a peaceful manner by coming on street when their all efforts for redressal of their grievance were not addressed by the Respondents. The Petitioners have placed on record various representations, inter-se correspondence between Respondent No.7 and Government officials, which would demonstrate that on every occasion only assurance was given to the Petitioners that ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 56 alternate site will be identified by the Corporation and the Corporation should be allowed to dump the solid waste/ garbage till then. One of such letter, dated 7th September, 2013, written by Suresh Pedgaonkar, Deputy Commissioner (Revenue) to Dahihande Manish Chandrakant, Councillor, Ward No.22, Municipal Corporation, Aurangabad is reproduced herein below:-
"tk-dz-@euik@mvk¼e½@Lohl@2013@62] fnukad %&07@09@2013 izfr] Jh- nghgaMs efu"k panzdkar] l- lnL; okWMZ dz- 22] egkuxjikfydk] vkSjaxkckn-
fo"k; %& miks"k.k ekxs ?ks.;kckcr-
egksn;] ukjsxko ;sFkhy dpjk Msiks vU;= gyfo.;klkBh vki.k lq: dsysY;k miks"k.kkP;k vuq"kaxkus vkSjaxkckn egkuxjikfydsP;k orhus vki.kkaLk ys[kh vk'oklu ns.;kr ;srs dh] ukjsxkao ;sFkhy dpjk Msiks vU;= gyfo.;klkBh ek- foHkkxh; vk;qDr rlsp ek-::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 :::
pil33.18 57 ftYgkf/kdkjh vkSjaxkckn ;kaps lkscr ek- vk;qDr egkuxjikfydk vkSjaxkckn ;kaph ppkZ >kyh vkgs- lnj ppsZe/;s vkSjaxkckn egkuxjikfydk dpjk MsikslkBh vU;
fBdk.kh tkxk miyC/k d:u ns.;kps R;kauh ekU; dsys vkgs- ;k lanHkkZus fofo/k foHkkxkps uk&gjdr izek.ki= d:u ?ks.;kph dk;Zokgh lq: vkgs- egkuxjikfydsP;k dpjk MsikslkBh o R;klkBh vko';d vlysys uk&gjdr izek.ki= izkIr d:u ?ks.;kph dk;Zokgh vafre VI;kr vkgs- lnj dk;Zokgh iw.kZ >kY;kuarj o tfeuhpk rkck feGkY;kuarj vkSjaxkckn egkuxjikfydkpk ukjsxkao ;sFkhy dpjk Msiks vU;= gyfo.;kph dk;Zokgh rkrMhus dj.;kr ;sowu ;kckcrph loZ izdzh;k nksu efg.;kr dj.;kr ;sbZy-
d`i;k vki.k vkiys miks"k.k ekxs ?ksÅu lgdk;Z djkos gh fouarh-
vkiyk fo'oklw] Lok{kjh lqjs'k isMxkaodj] mi vk;qDr ¼eglwy½ . True translation of the said letter dated ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 58 7th September, 2013 is as under:
"O.No.AMC/DC(R)/SVS/2013/62 Date 07/09/2013 To, Shri.Dahihande Manish Chandrakant S. Sadasya Ward No.22, Municipal Corporation, Aurangabad Subject:- Regarding withdrawal of hunger strike.
Sir, For shifting of Garbage Depot to any other place from Naregaon you have started hunger strike therefore on behalf of Municipal Corporation Aurangabad a written assurance is being given to you that for shifting Garbage Depot from Naregaon to any other place a discussion has been taken place amongst the Municipal Commissioner, Divisional Commissioner and Collector Aurangabad. In the said discussion it has been agreed that for Garbage Depot an another place shall be made available for the Municipal Corporation Aurangabad. In this regard, necessary action for seeking No Objection ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 59 Certificates from various departments is going on. The action of seeking necessary No Objection Certificates from various department for Garbage Depot of Municipal Corporation is in the final stage. After completion of said procedure and after seeking possession of land for the Garbage Depot of Municipal Corporation the process of shifting Garbage Depot of Naregaon to any other place shall be made immediately within two months.
You are requested to co-operate by withdrawing your hunger strike.
Yours faithfully, Sd/-
Suresh Pedgaonkar Deputy Commissioner (Revenue)
18. There is no denial to the assertion of the Petitioners that Respondent No.7 and also the State Government and representatives of the people gave assurance to the villagers on many occasions that steps will be taken forthwith so as to shift the dumping yard from the present site to some other site. The contents of the show-cause notice ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 60 issued by Respondent No.6 to Respondent No.7, referred above, would make it abundantly clear that there is flagrant violation of the relevant provisions of Air (Prevention and Control of Pollution) Act, the Environment (Protection) Act,1986, the Water (Prevention and Control of Pollution) Act, 1974, Solid Wastes (Management and Handling) Rules, 2000 and Solid Waste Management Rules, 2016 by Respondent No.7 Corporation. It appears that Respondent No.7 did not bother to address the grievance of the Petitioners raised by them through various representations and continued to dump the solid waste/ garbage at Gut Nos.78 and 79 of village Mandki in utter disregard to the fundamental rights of the citizens guaranteed under Article 21 of the Constitution of India to live in pollution free environment. In the said background, it is the duty of this Court to ensure that not only the orders of this Court passed in Writ Petition No.3253 of 2002, referred above, are followed but also the provisions of Environment Protection Act, 1986 and the Rules of ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 61 2000 and Rules of 2016 are implemented by Respondent No.7 and to seriously view the breach by the Respondents, in particular breach by State and State officials and also by the Municipal Corporation, which has deprived the large number of citizens residing at villages Mandki, Gopalpur, Palshi, Pokhri and surrounding areas, from the right to live in pollution free environment, as guaranteed under Article 21 of the Constitution of India.
19. At this juncture, it would be appropriate to rely upon the observations of the Supreme Court in the case of Amarnath Shrine, In Re (Court on its own Motion) vs. Union of India and others 13. While considering and explaining the ambit and scope of Article 21 of the Constitution of India, the Supreme Court held thus:
"The right to life under Article 21 is a right to live with dignity, safety and in a clean environment. The ambit of 13 (2013) 3 SCC 247 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:34 ::: pil33.18 62 Article 21 of the Constitution has been expanded by judicial pronouncements consistently. The judgments have accepted such right and placed a clear obligation on the part of the State to ensure meaningful fulfilment of such right. Socio-economic justice for people is the very spirit of the Preamble of our Constitution. "Interest of the general public" in Article 19 [5] is a comprehensive expression comprising several issues which affect public welfare, public convenience, public order, health, morality, safety, etc., all intended to achieve the socio- economic justice for people. The expression "life" enshrined in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of living, hygienic conditions in the workplace and leisure. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilisation which make life worth living. The expanded connotation of life would mean the traditional and cultural heritage of the persons concerned."::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 :::
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20. As already observed the Corporation in breach of right guaranteed under Article 21 of the Constitution of India, to live with dignity, safety and in a clean environment, had continued to dump the solid waste/ garbage in Gut Nos.78 and 79 of village Mandki, without taking appropriate measures/ steps for segregation, processing of the solid waste. There is no denial to the assertion of the Petitioners that the solid waste/ garbage is dumped even underneath up to considerable depth and no steps have been taken to process the same so as to avoid the serious consequences such as air pollution, and also to avoid contamination of water due to dumping of such huge quantity of the solid waste/garbage. The Petitioners, keeping in view the submissions made across the Bar by the counsel appearing for the Corporation, submitted that nearly 20,00,000 cubic ton solid waste in mixed condition is lying at the dumping site. The said site has been used by the Corporation for more than 33 years and therefore there is no doubt that it has attained maximum capacity and ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 64 therefore said needs immediate closure.
21. The Division Bench of this Court, Principal Seat at Mumbai (CORAM: A.M. KHANWILKAR AND A.P. BHANGALE, JJ.) in Writ Petition No.1740 of 1998 (Vijay Laxman Takte vs. The Navi Mumbai Municipal Corporation and others), by order dated 2nd April, 2013, disposed of said Petitions in terms of "Draft Minutes of the Order". It would be gainful to reproduce herein below the "Draft Minutes of the Order" so prepared and placed before the Division Bench, which reads thus:
"Draft Minutes of the Order
1. For implementation of Solid Waste (Management & Handling) Rules, 2000 (MSW Rules) and for segregation, management, treatment and disposal of solid waste in the areas of various local authorities, throughout the State of Maharashtra following directions are given.
2. For the aforesaid purpose, the State of Maharashtra shall be considered into four regions as follows :
(1) Konkan, (2) Western Maharashtra, (3) Vidharbha and (4) Marathwada
3. The local authorities shall be divided into following categories :::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 :::
pil33.18 65 (1) Urban Local Authorities:
(a) Municipal Corporations
(b) Municipal Councils (2) Other Authorities:
(a) Zilla Parishad
(b) Taluka Panchayat and
(c) Village Panchayat
4. The following officers shall be designated as Nodal Officers/ Authorized officers who will be incharge and responsible for implementation of the MSW Rules and these directions:
(1) Divisional Commissioner for the Districts within his jurisdiction;
(2) Municipal Commissioner / Additional Commissioner for Municipal Corporation areas;
(3) Chief Officer-Municipal Council;
(4) District Collector for the entire district in respect of all other local authorities.
5. (a) The Secretary Urban Development Department (UDD) shall be overall incharge as per MSW Rules 2000 (Rule 5). The Secretary UDD in addition to being primarily responsible for implementation of MSW Rules shall also be responsible for supervising and monitoring functioning of all other authorities:
(b) The responsibility of the aforesaid Nodal Officers/ Authorized Officers will include all issues relating to solid waste management from identification of the land fill site, dumping sites, waste treatment facility sites, obtaining requisite permissions from Maharashtra ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 66 Pollution Control Board (MPCB), segregation and transport of solid waste the treatment of solid waste and all other related matters.
6. The general issues shall be classified on the basis of availability of facilities with local authority for the aforesaid purposes as follows:
(a) local authorities which do not have designated / approved dumping site/land fill sites at all,
(b) the local authorities which have such sites available at present but are inadequate,
(c) the local authorities which have sites which are being operated as land fill sites/ dumping grounds but are non- compliant with MSW Rules and MPCB authorization and
(d) the local authorities which do not have provisions of solid waste treatment facilities.
Re: Local authorities which do not have the land fill sites/dumping ground :
7. (a) The authorized officer/ local authority shall take steps for acquisition of notified/ designated site for this purpose either in the Regional Plan or the Development Plan within a period of two weeks either under the provisions of Land Acquisition Act, 1894, Maharashtra Regional & Town Planning Act, 1966 or by mutual agreement with land owners.
(b) The process of selection and acquisition of sites including taking possession shall be completed expeditiously and not later than six ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 67 weeks in accordance with, the guidelines prescribed in the Government Resolution dated 5th October 2012, Annexure-1 as well as GR dated 26th August, 2003.
(c) The selection of site shall also take into consideration appropriateness and suitability of site from viewpoint of CRZ Notification, EIA Notification and other Environmental Laws including Forest Laws as applicable.
(d) Wherever the Local Authority has an approved authorized site for land fill/ dumping, the local authority shall immediately take steps to make it operational for that purpose within a period of 4 weeks.
(e) On selection, identification and acquisition of sites, the local authorities shall make the appropriate application not later than two weeks after taking possession of site, to the Pollution Control Board under Rule 6 of MSW Rules for authorization.
(f) The MPCB shall process the application and grant the authorization in accordance with the provisions of Air Act and Water Act and MSW Rules 2000 preferably within a period of two weeks end not later than from receipt of application complete in all respects.
(g) On the aforesaid compliances the site shall be used by the concerned local authorities for land fill / dumping strictly in accordance with the MSW Rules 2000 and authorization granted by MPCB.
(h) The Nodal Officers / Authorized Officer shall monitor periodically the operation of such sites and compliance ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 68 with MSW Rules and MPCB authorization on fortnightly basis and make report and take remedial measures to ensure compliance.
(i) In case there are no designated / notified sites the State Government shall assist such Local authority to identify, select and acquire the requisite site and notify or designate the same for land fill/dumping of MSW. The State Government shall initiate steps for this purpose preferably within two weeks from this order and complete the process as per statutory provisions for designation of the site.
(j) In case the site designated within the area of local authorities is encroached upon the local authorities shall initiate action for removal of encroachment within two weeks, including but not limited to, in accordance with the relevant Municipal law or the Maharashtra Land Revenue Code as the case may be for eviction of such unauthorized encroachers. In the event of such actions being taken no Court or authority in the State shall entertain any application or proceedings or suit in respect of such eviction and any such proceeding shall be filed only in this Court.
(k) In case there are any proceedings pending/orders passed in respect of any sites within the jurisdiction of Local Authority, such authority shall immediately take steps to get the stay orders vacated and/or bring it to the notice of this Court for appropriate directions.
Re: Local authorities which have inadequate facilities:::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 :::
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8. (a) The local authority will assess the need for the sites by taking into account the existing population and growth of population upto atleast next 30 years.
(b) The local authorities shall take steps for selection, identification and acquisition of additional sites by following the directions in the preceding paragraph under the heading "Re : Local authorities which do not have the land fill sites / dumping grounds."
Re: The Local authorities which have facilities which are non- compliant with MSW Rules 2000 and MPCB authorization:
9. The MPCB shall make report in respect of each of the designated dumping site within jurisdiction of all Municipal Corporations, Municipal Councils and Panchayats to ensure Compliance with MSW Rules and these directions and directions of the Supreme Court. This exercise to be completed within a period of 8 weeks.
10. All dumping sites which do not comply with MSW Rules and other governing applicable laws and these directions and the sites which are not designated as per rules shall be discontinued and closed within a period of three months or an acquisition of new site whichever is earlier.
11. All sites which have exceeded their capacity shall be closed down as per procedure under MSW Rules.
Re: The Local authorities which do not have waste processing facilities:
12. The Local authorities shall take ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 70 steps for treatment of solid waste in accordance with MSW Rules either through themselves or through an identified agency.
13. The Municipal Corporations and Councils shall adopt measures as per Schedule III of MSW Rules to ensure :
(i) Segregation of Municipal Solid Wastes
(ii) Setting up facilities for processing biodegradable wastes by composting, vermi composting, anaerobic digestion or any other biological processing
(iii)Eventual elimination of landfilling requirements for biodegradable wastes
(iv) The State Government shall take decision on the pending proposals / applications made by the local authorities for grant of lands on lease or otherwise, or grant of NOC etc. within a period of 45 days from date of this order.
(v) The Local authorities which have not made such applications shall do so within a period of 4 weeks to the State Government and the State Government shall take a decision thereon within 45 days thereafter.
14. Sites for Composting, Vermi Composting etc.
(i) These sites shall also comply with these directions and MSW Rules (Schedule IV)
(ii) MPCB shall prescribe cap on storage of wet garbage to be treated at these sites so that the site does not become a ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 71 dumping ground
(iii) These sites shall also comply with the Rules for storage of garbage as permitted by MPCB under MSW Rules
(iv) In the event of non-compliance of these directions MSW Rules and parameters as regards, storage of wet garbage limit of storage and operation of composting or vermi compost plant, the same shall be closed down and shall not be re-operated until MPCB reports remedial measures and its compliance.
15. General:
Action Plan for Treatment and Processing of Solid Waste Sr. Action Plan Details Time Schedule No.
1. To develop mechanism for Within 2 months after collection, segregation processing of land (at source / site) & transportation to processing facility & landfill site.
2. Settling up and
Commissioning of Waste
Processing Facility
(a) Selecting of Within 2 months after
technology possession of Land
(b) Preparation of Within 2 months after Detailed Project Report selection of technology
(c)Obtaining clearance Within 4 months from from MCZMA/MOEF submission of the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 72 proposal by the ULB
(d) Inviting tenders and Within 2 months after appointment of Agency obtaining clearance from MCZMA/MOEF
(e) Issuance of Work Within 1 month Order with the time frame & necessary conditions by Municipal Authority
(f) Settling of MSW Within 18 months from processing facility & the date of work order making it operational
3. Development & Within 12 months after Commissioning of secured possession of land landfill site
4. Closure of cell & its After exhausting monitoring for at least capacity of the next fifteen years as per existing cell Rules.
5. Improving of existing facility
(a) Closure of existing Within 16 months dump site if required as per MSW Rules
(b) Setting up and Within 24 months commissioning of waste processing facility if not available at existing site.
(c) Improvement in the Within 6 months existing waste processing facility and secured ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 73 landfill site in accordance with the MSW Rules.
(d) Development of new Within 12 months secured landfill site at existing site if not available.
6. (a) Application for As per Rules Authorization by Municipal Authority (Rule 4 (2))
(b) Grant of a As per Rules authorization for processing facility & landfill site. (Rule 6 (2))
16. In the Solid Waste/Garbage Management following issues shall be considered for long term and future planning by Local authorities State and Central Government and Pollution Control Boards :
(i) Daily operations and maintenance of Dumping and Land fill sites
(ii) Daily operation and maintenance of Waste Treatment Fascilities of Biodegradable Wastes
(iii) Fire protection during dump leveling
(iv) Garbage Bio-Mining
(v) Closure of sites which have attained their maximum capacity ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 74
(vi) Use of closed landfill sites as per MSW Rules
(vii) Subsequent land-use
(viii)Water consumption for capping
(ix) Methane Generation
(x) Encouraging the Local Authority to adopt these measures and comply the directions to earn Carbon Credits.
17. The local authorities may for this purpose explore the possibility of assigning / awarding this work on Public Private Partnership basis to Private entrepreneurs who will undertake this work in entirety including selection and acquisition of land as well as installation of treatment plants. For this purpose the local authority may resort to the process of Swiss challenge as approved by the Supreme Court in the case of Ravi Developers V/s. Shree Krishna Pratishtha - 2009 (7) SCC 462. The site so selected shall also strictly comply with all applicable provisions of MSW Rules, all other relevant laws and these directions.
18. The Local Authority/ Corporations shall issue directions to the residents for solid waste segregation of garbage as per rules and take steps for its compliance.
19. The State Government/Local Authorities shall give highest priority for establishing / settling up common facilities or land fill/dumping sites/ processing facilities.
20. Whenever permission is required under the provisions of Environment Impact Assessment (EIA notification), ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 75 Coastal Regulation Zone (CRZ Regulations), River Regulation Zone Policy (RRZ) (RRZ policy), Forest Laws etc. such authorities shall process and consider the applications made by Local Authority / Designated agency, expeditiously within a period of 4 weeks or as per the time limit prescribed in the relevant rules.
21. It is clarified that wherever there is a statutory period prescribed for processing of any application grant of clearance etc. the period prescribed therein shall be applicable.
22. The directions contained in this order are in addition to and supplementary to directions already given or orders passed in individual Writ Petitions/ PILs.
23. Liberty to apply in case there is exceptional problem or exigency." . The Division Bench proceeded to pass the order in terms of "Draft Minutes of Order" being satisfied that said dispensation is not only imperative but also fulfill the aspirations of the statutory provisions in place. In the said order, in clause 16 of the Draft Minutes of Order, it is stated that, in the Solid Waste/ Garbage Management issues mentioned in the said clause shall be considered for long term and future ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 76 planning by Local authorities, State and Central Government and Pollution Control Boards. One of the issue is about closure of sites which have attained their maximum capacity. Keeping in view the said order, in the facts of the present case also closure of site at Gut Nos.78 and 79 of village Mandki is urgently warranted to avoid further damage to environment, contamination to water, spreading of further diseases, loss of life of birds, animals and so also human beings, and also due to the fact that Airport is situate within 10 Kms. distance from the site.
22. There is historical background to Aurangabad city and also it is industrial hub. Historic places such as Ajanta and Elora, Daulatabad Fort are near Aurangabad city. There are also historic places such as Bibika Makbara, Panchakki etc. in the local limits of Aurangabad city. Therefore, every day, tourists and other citizens from other part of Country visits the city by air-travel.
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23. At this juncture, it would be apt to reproduce herein below the relevant provisions of the Aircraft Act, 1934 and relevant rules of the Aircraft Rules, 1937. Sections 5-A and 11-A of the Aircraft Act reads as under:
"5A. Power to issue directions.- (1) The Director-General of Civil Aviation or any other officer specially empowered in this behalf by the Central Government may, from time to time, by order, issue directions, consistent with the provisions of this Act and the rules made thereunder, with respect to any of the matters specified in clauses (aa), (b), (c), (e), (f), (g), (ga), (gb), (gc), (h), (i), (m) and (qq) of sub-section (2) of section 5, to any person or persons using any aerodrome or engaged in the aircraft operations, air traffic control, maintenance and operation of aerodrome, communication, navigation, surveillance and air traffic management facilities and safeguarding civil aviation against acts of unlawful interference, in any case where the Director-General of Civil Aviation or such other officer is satisfied that in the interests of the security of India or for ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 78 securing the safety of aircraft operations it is necessary so to do.
(2) Every direction issued under sub- section (1) shall be complied with by the person or persons to whom such direction is issued.
11A. Penalty for failure to comply with directions issued under section 5A.- If any person willfully fails to comply with any direction issued under section 5A, he shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to ten lakh rupees, or with both."
. Section 10(1A) of the Aircraft Act, 1934 and Rule 91 of the Aircraft Rules, 1937 reads thus:-
"(1A) If any person contravenes any provision of any rule made under clause (qq) of sub-section (2) of section 5 prohibiting the slaughter and flaying of animals and of depositing rubbish, filth and other polluted and obnoxious matter within a radius of ten kilometres from the aerodrome reference point, he shall be punishable with imprisonment which may ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 79 extend to [three years, or with fine which may extend to ten lakh rupees], or with both."
"91. Prohibition of slaughtering and flaying of animals, depositing of rubbish and other polluted or obnoxious matter in the vicinity of aerodrome.- No person shall slaughter or flay any animal or deposit or drop any rubbish, filth, garbage or any other polluted or obnoxious matter including such material from hotels, meat shops, fish shops and bone- processing mills which attracts or is likely to attract vultures or other birds and animals within a radius of ten kilometers from the aerodrome reference point :
Provided that the Director-General, a Joint Director General of Civil Aviation or a Deputy Director General of Civil Aviation may, if he is satisfied that proper and adequate arrangements have been made by the owners of hotels, meat shops, fish shops and bone processing mills so as to prevent attraction of vultures or other birds and animals, having regard to the vicinity of place of slaughter from the aerodrome, arrangements for disposal or ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 80 deposit of carcass, rubbish and other polluted and obnoxious matter, grant permission in writing for the purpose."
24. Keeping in view the aforesaid provisions of the Aircraft Act, 1934 and the Aircraft Rules, 1937 and the fact that, distance of said site and the Airport is within the radius of 10 Kms., there is no alternative but to close the site.
25. The High Court of Uttarakhand at Nainital had occasion to deal with the provisions of the Solid Waste Management Rules, 2016, in the case of Sai Nath Seva Mandal V/s State of Uttarakhand and others)14. It would be gainful to reproduce herein below the paragraphs nos.66 to 69 and 72 to 76 of the said Judgment :
"66. The Central Government has framed the Solid Waste Management Rules, 2016 (hereinafter to be referred as 'the Rules of 2016'). These Rules were notified on 8.2.2016.
Under Rule 2, these Rules have been made applicable to every urban local body, 14 2017 SCC Online Utt 364 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 81 outgrowths in urban agglomerations, census towns as declared by the Registrar General and Census Commissioner of India, notified areas, notified industrial townships, areas under the control of Indian Railways, airports, airbases, Ports and harbours, defence establishments, special economic zones, State and Central government organisations, places of pilgrims, religious and historical importance as may be notified by respective State government from time to time and to every domestic, institutional, commercial and any other non residential solid waste generator situated in the areas except industrial waste, hazardous waste, hazardous chemicals, bio medical wastes, e-waste, lead acid batteries and radio-active waste, that are covered under separate rules framed under the Environment (Protection) Act, 1986.
67. For the sake of convenience, Rules 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19 and 20 of the Rules of 2016 are reproduced as under:
4. Duties of waste generators.- (1) Every waste generator shall,- (a) segregate and store the waste generated by them in three separate streams namely bio-degradable, non biodegradable and domestic hazardous wastes in suitable bins and handover segregated wastes to authorised waste pickers or waste ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 82 collectors as per the direction or notification by the local authorities from time to time; (b) wrap securely the used sanitary waste like diapers, sanitary pads etc., in the pouches provided by the manufacturers or brand owners of these products or in a suitable wrapping material as instructed by the local authorities and shall place the same in the bin meant for dry waste or non-bio-degradable waste; (c) store separately construction and demolition waste, as and when generated, in his own premises and shall dispose off as per the Construction and Demolition Waste Management Rules, 2016; and
(d) store horticulture waste and garden waste generated from his premises separately in his own premises and dispose of as per the directions of the local body from time to time. (2) No waste generator shall throw, burn or burry the solid waste generated by him, on streets, open public spaces outside his premises or in the drain or water bodies. (3) All waste generators shall pay such user fee for solid waste management, as specified in the bye-laws of the local bodies. (4) No person shall organise an event or gathering of more than one hundred persons at any unlicensed place without intimating the local body, at least three working days in advance and such person or the organiser of such event shall ensure segregation of waste at source ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 83 and handing over of segregated waste to waste collector or agency as specified by the local body. (5) Every street vendor shall keep suitable containers for storage of waste generated during the course of his activity such as food waste, disposable plates, cups, cans, wrappers, coconut shells, leftover food, vegetables, fruits, etc., and shall deposit such waste at waste storage depot or container or vehicle as notified by the local body. (6) All resident welfare and market associations shall, within one year from the date of notification of these rules and in partnership with the local body ensure segregation of waste at source by the generators as prescribed in these rules, facilitate collection of segregated waste in separate streams, handover recyclable material to either the authorised waste pickers or the authorised recyclers. The bio-degradable waste shall be processed, treated and disposed off through composting or biomethanation within the premises as far as possible. The residual waste shall be given to the waste collectors or agency as directed by the local body. (7) All gated communities and institutions with more than 5,000 sqm area shall, within one year from the date of notification of these rules and in partnership with the local body, ensure segregation of waste at source by the generators as prescribed in these rules, ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 84 facilitate collection of segregated waste in separate streams, handover recyclable material to either the authorised waste pickers or the authorizsd recyclers. The bio-degradable waste shall be processed, treated and disposed off through composting or bio-methanation within the premises as far as possible. The residual waste shall be given to the waste collectors or agency as directed by the local body. (8) All hotels and restaurants shall, within one year from the date of notification of these rules and in partnership with the local body ensure segregation of waste at source as prescribed in these rules, facilitate collection of segregated waste in separate streams, handover recyclable material to either the authorised waste pickers or the authorised recyclers. The bio-degradable waste shall be processed, treated and disposed off through composting or bio-methanation within the premises as far as possible. The residual waste shall be given to the waste collectors or agency as directed by the local body.
5. Duties of Ministry of Environment, Forest and Climate Change.- (1) The Ministry of Environment, Forest and Climate Change shall be responsible for over all monitoring the implementation of these rules in the country. It shall constitute a Central Monitoring Committee under the Chairmanship of Secretary, Ministry of Environment, Forest and Climate ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 85 Change comprising officer not below the rank of Joint Secretary or Advisor from the following namely,- 1) Ministry of Urban Development 2) Ministry of Rural Development
3) Ministry of Chemicals and Fertilizers 4) Ministry of Agriculture 5) Central Pollution Control Board 6) Three State Pollution Control Boards or Pollution Control Committees by rotation 7) Urban Development Departments of three State Governments by rotation 8) Rural Development Departments from two State Governments by rotation 9) Three Urban Local bodies by rotation 10) Two census towns by rotation 11) FICCI, CII 12) Two subject experts.
2. This Central Monitoring Committee shall meet at least once in a year to monitor and review the implementation of these rules. The Ministry of Environment, Forest and Climate Change may co-opt other experts, if needed. The Committee shall be renewed every three years.
6. Duties of Ministry of Urban Development.- (1) The Ministry of Urban Development shall coordinate with State Governments and Union territory Administrations to,- (a) take periodic review of the measures taken by the states and local bodies for improving solid waste management practices and execution of solid waste management projects funded by the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 86 Ministry and external agencies at least once in a year and give advice on taking corrective measures; (b) formulate national policy and strategy on solid waste management including policy on waste to energy in consultation with stakeholders within six months from the date of notification of these rules; (c) facilitate States and Union Territories in formulation of state policy and strategy on solid management based on national solid waste management policy and national urban sanitation policy;
(d) promote research and development in solid waste management sector and disseminate information to States and local bodies; (e) undertake training and capacity building of local bodies and other stakeholders; and (f) provide technical guidelines and project finance to states, Union territories and local bodies on solid waste management to facilitate meeting timelines and standards.
7. Duties of Department of Fertilisers, Ministry of Chemicals and Fertilisers.- (1) The Department of Fertilisers through appropriate mechanisms shall,- (a) provide market development assistance on city compost; and (b) ensure promotion of co-marketing of compost with chemical fertilisers in the ratio of 3 to 4 bags: 6 to 7 bags by the fertiliser companies to the extent compost is made available for marketing to the companies. ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 :::
pil33.18 87
8. Duties of Ministry of Agriculture, Government of India-The Ministry of Agriculture through appropriate mechanisms shall,- (a) provide flexibility in Fertiliser Control Order for manufacturing and sale of compost; (b) propagate utlisation of compost on farm land; (c) set up laboratories to test quality of compost produced by local authorities or their authorised agencies; and
(d) issue suitable guidelines for maintaining the quality of compost and ratio of use of compost visa-a-vis chemical fertilizers while applying compost to farmland.
9. Duties of the Ministry of Power.- The Ministry of Power through appropriate mechanisms shall,- (a) decide tariff or charges for the power generated from the waste to energy plants based on solid waste. (b) compulsory purchase power generated from such waste to energy plants by distribution company.
10. Duties of Ministry of New and Renewable Energy Sources.- The Ministry of New and Renewable Energy Sources through appropriate mechanisms shall,- (a) facilitate infrastructure creation for waste to energy plants; and (b) provide appropriate subsidy or incentives for such waste to energy plants.
11. Duties of the Secretary-in-charge, Urban Development in the States and Union ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 88 territories- (1) The Secretary, Urban Development Department in the State or Union territory through the Commissioner or Director of Municipal Administration or Director of local bodies shall,- (a) prepare a state policy and solid waste management strategy for the state or the union territory in consultation with stakeholders including representative of waste pickers, self help group and similar groups working in the field of waste management consistent with these rules, national policy on solid waste management and national urban sanitation policy of the ministry of urban development, in a period not later than one year from the date of notification of these rules; (b) while preparing State policy and strategy on solid waste management, lay emphasis on waste reduction, reuse, recycling, recovery and optimum utilisation of various components of solid waste to ensure minimisation of waste going to the landfill and minimise impact of solid waste on human health and environment;
(c) state policies and strategies should acknowledge the primary role played by the informal sector of waste pickers, waste collectors and recycling industry in reducing waste and provide broad guidelines regarding integration of waste picker or informal waste collectors in the waste management system. (d) ensure implementation of provisions of these ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 89 rules by all local authorities; (e) direct the town planning department of the State to ensure that master plan of every city in the State or Union territory provisions for setting up of solid waste processing and disposal facilities except for the cities who are members of common waste processing facility or regional sanitary landfill for a group of cities; and (f) ensure identification and allocation of suitable land to the local bodies within one year for setting up of processing and disposal facilities for solid wastes and incorporate them in the master plans (land use plan) of the State or as the case may be, cities through metropolitan and district planning committees or town and country planning department; (h) direct the town planning department of the State and local bodies to ensure that a separate space for segregation, storage, decentralised processing of solid waste is demarcated in the development plan for group housing or commercial, institutional or any other non- residential complex exceeding 200 dwelling or having a plot area exceeding 5,000 square meters; (i) direct the developers of Special Economic Zone, Industrial Estate, Industrial Park to earmark at least five percent of the total area of the plot or minimum five plots or sheds for recovery and recycling facility.
(j) facilitate establishment of common ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:35 ::: pil33.18 90 regional sanitary land fill for a group of cities and towns falling within a distance of 50 km (or more) from the regional facility on a cost sharing basis and ensure professional management of such sanitary landfills; (k) arrange for capacity building of local bodies in managing solid waste, segregation and transportation or processing of such waste at source; (l) notify buffer zone for the solid waste processing and disposal facilities of more than five tons per day in consultation with the State Pollution Control Board; and
(m) start a scheme on registration of waste pickers and waste dealers.
12. Duties of District Magistrate or District Collector or Deputy Commissioner.- The District Magistrate or District Collector or as the case may be, the Deputy Commissioner shall, - (a) facilitate identification and allocation of suitable land as per clause (f) of rules 11 for setting up solid waste processing and disposal facilities to local authorities in his district in close coordination with the Secretary-in-charge of State Urban Development Department within one year from the date of notification of these rules; (b) review the performance of local bodies, at least once in a quarter on waste segregation, processing, treatment and disposal and take corrective measures in consultation with the Commissioner or Director ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 91 of Municipal Administration or Director of local bodies and secretary-in-charge of the State Urban Development.
13. Duties of the Secretary-in-charge of Village Panchayats or Rural Development Department in the State and Union territory- (1) The Secretary-in-charge of Village Panchayats or Rural Development Department in the State and Union territory shall have the same duties as the Secretary-in-charge, Urban Development in the States and Union territories, for the areas which are covered under these rules and are under their jurisdictions.
14. Duties of Central Pollution Control Board- The Central Pollution Control Board shall, (a) co-ordinate with the State Pollution Control Boards and the Pollution Control Committees for implementation of these rules and adherence to the prescribed standards by local authorities; (b) formulate the standards for ground water, ambient air, noise pollution, leachate in respect of all solid waste processing and disposal facilities; (c) review environmental standards and norms prescribed for solid waste processing facilities or treatment technologies and update them as and when required; (d) review through State Pollution Control Boards or Pollution Control Committees, at least once in a year, the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 92 implementation of prescribed environmental standards for solid waste processing facilities or treatment technologies and compile the data monitored by them; (e) review the proposals of State Pollution Control Boards or Pollution Control Committees on use of any new technologies for processing, recycling and treatment of solid waste and prescribe performance standards, emission norms for the same within 6 months; (f) monitor through State Pollution Control Boards or Pollution Control Committees the implementation of these rules by local bodies;
(g) prepare an annual report on implementation of these rules on the basis of reports received from State Pollution Control Boards and Committees and submit to the Ministry of Environment, Forest and Climate Change and the report shall also be put in public domain; (h) publish guidelines for maintaining buffer zone restricting any residential, commercial or any other construction activity from the outer boundary of the waste processing and disposal facilities for different sizes of facilities handling more than five tons per day of solid waste; (i) publish guidelines, from time to time, on environmental aspects of processing and disposal of solid waste to enable local bodies to comply with the provisions of these rules; and (j) provide guidance to States or Union territories on inter-state movement of ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 93 waste.
15. Duties and responsibilities of local authorities and village Panchayats of census towns and urban agglomerations- The local authorities and Panchayats shall,- (a) prepare a solid waste management plan as per state policy and strategy on solid waste management within six months from the date of notification of state policy and strategy and submit a copy to respective departments of State Government or Union territory Administration or agency authorised by the State Government or Union territory Administration; (b) arrange for door to door collection of segregated solid waste from all households including slums and informal settlements, commercial, institutional and other non residential premises. From multi- storage buildings, large commercial complexes, malls, housing complexes, etc., this may be collected from the entry gate or any other designated location; (c) establish a system to recognise organisations of waste pickers or informal waste collectors and promote and establish a system for integration of these authorised waste-pickers and waste collectors to facilitate their participation in solid waste management including door to door collection of waste; (d) facilitate formation of Self Help Groups, provide identity cards and thereafter encourage integration in solid ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 94 waste management including door to door collection of waste; (e) frame bye-laws incorporating the provisions of these rules within one year from the date of notification of these rules and ensure timely implementation; (f) prescribe from time to time user fee as deemed appropriate and collect the fee from the waste generators on its own or through authorised agency; (g) direct waste generators not to litter i.e. throw or dispose of any waste such as paper, water bottles, liquor bottles, soft drink canes, tetra packs, fruit peel, wrappers, etc., or burn or burry waste on streets, open public spaces, drains, waste bodies and to segregate the waste at source as prescribed under these rules and hand over the segregated waste to authorised the waste pickers or waste collectors authorised by the local body; (h) setup material recovery facilities or secondary storage facilities with sufficient space for sorting of recyclable materials to enable informal or authorised waste pickers and waste collectors to separate recyclables from the waste and provide easy access to waste pickers and recyclers for collection of segregated recyclable waste such as paper, plastic, metal, glass, textile from the source of generation or from material recovery facilities; Bins for storage of bio-degradable wastes shall be painted green, those for ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 95 storage of recyclable wastes shall be printed white and those for storage of other wastes shall be printed black; (i) establish waste deposition centres for domestic hazardous waste and give direction for waste generators to deposit domestic hazardous wastes at this centre for its safe disposal. Such facility shall be established in a city or town in a manner that one centre is set up for the area of twenty square kilometers or part thereof and notify the timings of receiving domestic hazardous waste at such centres; (j) ensure safe storage and transportation of the domestic hazardous waste to the hazardous waste disposal facility or as may be directed by the State Pollution Control Board or the Pollution Control Committee; (k) direct street sweepers not to burn tree leaves collected from street sweeping and store them separately and handover to the waste collectors or agency authorised by local body; (l) provide training on solid waste management to waste-pickers and waste collectors; (m) collect waste from vegetable, fruit, flower, meat, poultry and fish market on day to day basis and promote setting up of decentralised compost plant or bio-methanation plant at suitable locations in the markets or in the vicinity of markets ensuring hygienic conditions; (n) collect separately waste from sweeping of streets, lanes and by-lanes daily, or on alternate days ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 96 or twice a week depending on the density of population, commercial activity and local situation; (o) set up covered secondary storage facility for temporary storage of street sweepings and silt removed from surface drains in cases where direct collection of such waste into transport vehicles is not convenient. Waste so collected shall be collected and disposed of at regular intervals as decided by the local body; (p) collect horticulture, parks and garden waste separately and process in the parks and gardens, as far as possible; (q) transport segregated bio-degradable waste to the processing facilities like compost plant, bio- methanation plant or any such facility. Preference shall be given for on site processing of such waste; (r) transport non- bio-degradable waste to the respective processing facility or material recovery facilities or secondary storage facility; (s) transport construction and demolition waste as per the provisions of the Construction and Demolition Waste management Rules, 2016; (t) involve communities in waste management and promotion of home composting, bio-gas generation, decentralised processing of waste at community level subject to control of odour and maintenance of hygienic conditions around the facility; (u) phase out the use of chemical fertilizer in two years and use ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 97 compost in all parks, gardens maintained by the local body and wherever possible in other places under its jurisdiction. Incentives may be provided to recycling initiatives by informal waste recycling sector. (v) facilitate construction, operation and maintenance of solid waste processing facilities and associated infrastructure on their own or with private sector participation or through any agency for optimum utilisation of various components of solid waste adopting suitable technology including the following technologies and adhering to the guidelines issued by the Ministry of Urban Development from time to time and standards prescribed by the Central Pollution Control Board. Preference shall be given to decentralised processing to minimize transportation cost and environmental impacts such as- a) bio- methanation, microbial composting, vermi- composting, anaerobic digestion or any other appropriate processing for bio-stabilisation of biodegradable wastes; b) waste to energy processes including refused derived fuel for combustible fraction of waste or supply as feedstock to solid waste based power plants or cement kilns; (w) undertake on their own or through any other agency construction, operation and maintenance of sanitary landfill and associated infrastructure as per Schedule 1 for disposal of residual wastes in a manner ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 98 prescribed under these rules; (x) make adequate provision of funds for capital investments as well as operation and maintenance of solid waste management services in the annual budget ensuring that funds for discretionary functions of the local body have been allocated only after meeting the requirement of necessary funds for solid waste management and other obligatory functions of the local body as per these rules; (y) make an application in Form-I for grant of authorisation for setting up waste processing, treatment or disposal facility, if the volume of waste is exceeding five metric tones per day including sanitary landfills from the State Pollution Control Board or the Pollution Control Committee, as the case may be; (z) submit application for renewal of authorisation at least sixty days before the expiry of the validity of authorisation; (za) prepare and submit annual report in Form IV on or before the 30th April of the succeeding year to the Commissioner or Director, Municipal Administration or designated Officer; (zb) the annual report shall then be sent to the Secretary-in-Charge of the State Urban Development Department or village panchayat or rural development department and to the respective State Pollution Control Board or Pollution Control Committee by the 31st May of every year; (zc) educate workers ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 99 including contract workers and supervisors for door to door collection of segregated waste and transporting the unmixed waste during primary and secondary transportation to processing or disposal facility; (zd) ensure that the operator of a facility provides personal protection equipment including uniform, fluorescent jacket, hand gloves, raincoats, appropriate foot wear and masks to all workers handling solid waste and the same are used by the workforce; (ze) ensure that provisions for setting up of centers for collection, segregation and storage of segregated wastes, are incorporated in building plan while granting approval of building plan of a group housing society or market complex; and (zf) frame bye-laws and prescribe criteria for levying of spot fine for persons who litters or fails to comply with the provisions of these rules and delegate powers to officers or local bodies to levy spot fines as per the bye laws framed; and (zg) create public awareness through information, education and communication campaign and educate the waste generators on the following; namely: (i) not to litter; (ii) minimise generation of waste; (iii) reuse the waste to the extent possible; (iv) practice segregation of waste into bio-degradable, non- biodegradable (recyclable and combustible), sanitary waste and domestic hazardous wastes ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 100 at source; (v) practice home composting, vermi-composting, bio-gas generation or community level composting; (vi) wrap securely used sanitary waste as and when generated in the pouches provided by the brand owners or a suitable wrapping as prescribed by the local body and place the same in the bin meant for nonbiodegradable waste; (vii) storage of segregated waste at source in different bins;
(viii) handover segregated waste to waste pickers, waste collectors, recyclers or waste collection agencies; and (ix) pay monthly user fee or charges to waste collectors or local bodies or any other person authorised by the local body for sustainability of solid waste management. (zh) stop land filling or dumping of mixed waste soon after the timeline as specified in rule 23 for setting up and operationalisation of sanitary landfill is over; (zi) allow only the non-usable, non- recyclable, non-biodegradable, non-combustible and non-reactive inert waste and pre- processing rejects and residues from waste processing facilities to go to sanitary landfill and the sanitary landfill sites shall meet the specifications as given in Schedule- I, however, every effort shall be made to recycle or reuse the rejects to achieve the desired objective of zero waste going to landfill; (zj) investigate and analyse all old open dumpsites and existing operational ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 101 dumpsites for their potential of biomining and bioremediation and wheresoever feasible, take necessary actions to bio-mine or bio-remediate the sites; (zk) in absence of the potential of bio-mining and bio-remediation of dumpsite, it shall be scientifically capped as per landfill capping norms to prevent further damage to the environment.
16. Duties of State Pollution Control Board or Pollution Control Committee.- (1) The State Pollution Control Board or Pollution Control Committee shall,- (a) enforce these rules in their State through local bodies in their respective jurisdiction and review implementation of these rules at least twice a year in close coordination with concerned Directorate of Municipal Administration or Secretary-in-charge of State Urban Development Department; (b) monitor environmental standards and adherence to conditions as specified under the Schedule I and Schedule II for waste processing and disposal sites; (c) examine the proposal for authorisation and make such inquiries as deemed fit, after the receipt of the application for the same in Form I from the local body or any other agency authorised by the local body; (d) while examining the proposal for authorisation, the requirement of consents under respective ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 102 enactments and views of other agencies like the State Urban Development Department, the Town and Country Planning Department, District Planning Committee or Metropolitan Area Planning Committee, as may be applicable, Airport or Airbase Authority, the Ground Water Board, Railways, power distribution companies, highway department and other relevant agencies shall be taken into consideration and they shall be given four weeks time to give their views, if any; (e) issue authorisation within a period of sixty days in Form II to the local body or an operator of a facility or any other agency authorised by local body stipulating compliance criteria and environmental standards as specified in Schedules I and II including other conditions, as may be necessary; (f) synchronise the validity of said authorisation with the validity of the consents; (g) suspend or cancel the authorization issued under clause (a) any time, if the local body or operator of the facility fails to operate the facility as per the conditions stipulated: provided that no such authorization shall be suspended or cancelled without giving notice to the local body or operator, as the case may be; and (h) on receipt of application for renewal, renew the authorisation for next five years, after examining every application on merit and subject to the condition that the operator of ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 103 the facility has fulfilled all the provisions of the rules, standards or conditions specified in the authorisation, consents or environment clearance. (2) The State Pollution Control Board or Pollution Control Committee shall, after giving reasonable opportunity of being heard to the applicant and for reasons thereof to be recorded in writing, refuse to grant or renew an authorisation. (3) In case of new technologies, where no standards have been prescribed by the Central Pollution Control Board, State Pollution Control Board or Pollution Control Committee, as the case may be, shall approach Central Pollution Control Board for getting standards specified. (4) The State Pollution Control Board or the Pollution Control Committee, as the case may be, shall monitor the compliance of the standards as prescribed or laid down and treatment technology as approved and the conditions stipulated in the authorisation and the standards specified in Schedules I and II under these rules as and when deemed appropriate but not less than once in a year. (5) The State Pollution Control Board or the Pollution Control Committee may give directions to local bodies for safe handling and disposal of domestic hazardous waste deposited by the waste generators at hazardous waste deposition facilities. (6) The State Pollution Control Board or the Pollution ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 104 Control Committee shall regulate Inter-State movement of waste.
19. Criteria for Duties regarding setting-up solid waste processing and treatment facility.- (1) The department in-charge of the allocation of land assignment shall be responsible for providing suitable land for setting up of the solid waste processing and treatment facilities and notify such sites by the State Government or Union territory Administration. (2) The operator of the facility shall design and set up the facility as per the technical guidelines issued by the Central Pollution Control Board in this regard from time to time and the manual on solid waste management prepared by the Ministry of Urban Development. (3) The operator of the facility shall obtain necessary approvals from the State Pollution Control Board or Pollution Control Committee. (4) The State Pollution Control Board or Pollution Control Committee shall monitor the environment standards of the operation of the solid waste processing and treatment facilities. (5) The operator of the facility shall be responsible for the safe and environmentally sound operations of the solid waste processing and or treatment facilities as per the guidelines issued by the Central Pollution Control Board from time to time and ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 105 the Manual on Municipal Solid Waste Management published by the Ministry of Urban Development and updated from time to time. (6) The operator of the solid waste processing and treatment facility shall submit annual report in Form III each year by 30th April to the State Pollution Control Board or Pollution Committee and concerned local body.
20. Criteria and actions to be taken for solid waste management in hilly areas- In the hilly areas, the duties and responsibilities of the local authorities shall be the same as mentioned in rule 15 with additional clauses as under: (a) Construction of landfill on the hill shall be avoided. A transfer station at a suitable enclosed location shall be setup to collect residual waste from the processing facility and inert waste. A suitable land shall be identified in the plain areas down the hill within 25 kilometers for setting up sanitary landfill. The residual waste from the transfer station shall be disposed of at this sanitary landfill. (b) In case of non- availability of such land, efforts shall be made to set up regional sanitary landfill for the inert and residual waste. (c) Local body shall frame Bye-laws and prohibit citizen from littering wastes on the streets and give strict direction to the tourists not to ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 106 dispose any waste such as paper, water bottles, liquor bottles, soft drink canes, tetra packs, any other plastic or paper waste on the streets or down the hills and instead direct to deposit such waste in the litter bins that shall be placed by the local body at all tourist destinations. (d) Local body shall arrange to convey the provisions of solid waste management under the bye-laws to all tourists visiting the hilly areas at the entry point in the town as well as through the hotels, guest houses or like where they stay and by putting suitable hoardings at tourist destinations. (e) Local body may levy solid waste management charge from the tourist at the entry point to make the solid waste management services sustainable. (f) The department in-charge of the allocation of land assignment shall identify and allot suitable space on the hills for setting up decentralised waste processing facilities. Local body shall set up such facilities. Step garden system may be adopted for optimum utilisation of hill space."
68. It is evident from Rule 2 that the Rules of 2016 have been made applicable to every urban local body, outgrowths in urban agglomerations, census towns as declared by the Registrar General and Census Commissioner of India, notified areas, notified industrial townships, areas under the control of Indian ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 107 Railways, airports, airbases, Ports and harbours etc. Rule 4 imposes duties of waste generators. Every waste generator under Rule 4(1)(a) is required to segregate and store the waste generated by them in three separate streams namely bio-degradable, non biodegradable and domestic hazardous wastes in suitable bins and handover segregated wastes to the authorised waste pickers or waste collectors as per the direction or notification issued by the local authorities from time to time. Under Rule 4(1)(b), the waste generator is also required to wrap securely the used sanitary waste like diapers, sanitary pads etc., in the pouches provided by the manufacturers or brand owners of these products or in a suitable wrapping material, as instructed by the local authorities. It is required to place the same in the bin meant for dry waste or non-bio-degradable waste. Under Rule 4(1)(c), the waste generator is required to separately store the construction and demolition waste, as and when generated, in his own premises and to dispose of the same as per the Construction and Demolition Waste Management Rules, 2016. Under sub-rule (1)(d) of Rule 4, the waste generator is required to store horticulture waste and garden waste generated from his premises separately in his own premises and dispose of the same as per the directions of the local body issued from ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 108 time to time.
69. Sub-rule (4) of Rule 4 of the Rules of 2016 provides that no person shall organise an event or gathering of more than one hundred persons at any unlicensed place without intimating the local body, at least three working days in advance and such person or the organiser of such event shall ensure segregation of waste at source and handing over of segregated waste to waste collector or agency as specified by the local body. As per sub-rule (5) of Rule 4, every street vendor is required to keep suitable containers for storage of waste generated during the course of his activity such as food waste, disposable plates, cups, cans, wrappers, coconut shells, leftover food, vegetables, fruits, etc. Sub- rule (6) of Rule 4 provides that all resident welfare and market associations shall, within one year from the date of notification of these rules and in partnership with the local body ensure segregation of waste at source by the generators as prescribed in these rules, facilitate collection of segregated waste in separate streams, handover recyclable material to either the authorised waste pickers or the authorised recyclers. Similarly, under sub- rule (8) of Rule 4, all hotels and restaurants, within one year from the date of notification of these rules and in partnership with the local body, are required to ensure ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 109 segregation of waste at source as prescribed in these rules and facilitate collection of segregated waste in separate streams. Sub-rule (1) of Rule 11 provides that the Secretary, Urban Development Department in the State or Union territory through the Commissioner or Director of Municipal Administration or Director of local bodies, is required to prepare a state policy and solid waste management strategy for the state or the union territory in consultation with stakeholders including representative of waste pickers, self help group and similar groups working in the field of waste management. However, while preparing State policy and strategy on solid waste management, the emphasis must be on the waste reduction, reuse, recycling, recovery and optimum utilisation of various components of solid waste. The Secretary, Urban Development of the State is also required to ensure implementation of provisions of the Rules by all local bodies. He is supposed to direct the Town Planning Department of the State to ensure that the master plan of every city in the State or Union territory provisions for setting up of solid waste processing and disposal facilities except for the cities which are the members of common waste processing facility or regional sanitary landfill for a group of cities. The Secretary is also required to ensure identification and ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 110 allocation of suitable land to the local bodies within one year for setting up of processing and disposal facilities for solid wastes and incorporate them in the master plans. Similarly, under Rule 12 of the Rules, the District Magistrate or District Collector or as the case may be, the Deputy Commissioner, is required to facilitate identification and allocation of suitable land as per clause (f) of rules 11 for setting up solid waste processing and disposal facilities to local authorities in his district in close coordination with the Secretary-in-charge of State Urban Development Department within one year from the date of notification. The duties of Central Pollution Control Board and State Pollution Control Board are provided under Rule 14 of the Rules, as quoted, hereinabove. Rule 15 of the Rules lays down the duties and responsibilities of local authorities and village Panchayats of census towns and urban agglomerations. The local authorities and Panchayats are required to prepare a solid waste management plan as per the state policy and strategy on solid waste management within six months from the date of notification of state policy and strategy and submit a copy to respective departments of State Government or Union territory. They are also required to arrange door to door collection of segregated solid waste from all households including ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 111 slums and informal settlements, commercial, institutional and other non residential premises etc. They are also supposed to frame bye-laws incorporating the provisions of the Rules within one year from the date of notification of these Rules and also to create public awareness among the citizens of the State. Under Rule 16 of the Rules, the duties of State Pollution Control Board or Pollution Control Committee have been prescribed. There is a separate rule i.e. Rule 20 dealing with the criteria and actions to be taken for solid waste management in hilly areas.
72. The Central Government has framed the Rules called as Bio-Medical Waste Management Rules, 2016 (hereinafter to be referred as the 'Rules of 2016'). These Rules have come into force w.e.f. 28.3.2016. Rule 3 of the Rules is the dictionary clause. The duties of operator of a common bio-medical waste treatment and disposal facility are provided under Rule 5 of the Rules of 2016. The duties of authorities are provided under Rule 6.
73. Rule 4 of the Rules, which defines the duties of the Occupier, reads as under: "4. Duties of the Occupier.- It shall be the duty of every occupier to-
(a) take all necessary steps to ensure that ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 112 bio-medical waste is handled without any adverse effect to human health and the environment and in accordance with these rules;
(b) make a provision within the premises for a safe, ventilated and secured location for storage of segregated biomedical waste in colored bags or containers in the manner as specified in Schedule I, to ensure that there shall be no secondary handling, pilferage of recyclables or inadvertent scattering or spillage by animals and the biomedical waste from such place or premises shall be directly transported in the manner as prescribed in these rules to the common bio-medical waste treatment facility or for the appropriate treatment and disposal, as the case may be, in the manner as prescribed in Schedule I;
(c) pre-treat the laboratory waste, microbiological waste, blood samples and blood bags through disinfection or sterilisation on- site in the manner as prescribed by the World Health Organisation (WHO) or National AIDs Control Organisation (NACO) guidelines and then sent to the common bio-medical waste treatment facility for final disposal;
(d) phase out use of chlorinated plastic bags, gloves and blood bags within two years from the date of notification of these rules; ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 :::
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(e) dispose of solid waste other than bio- medical waste in accordance with the provisions of respective waste management rules made under the relevant laws and amended from time to time;
(f) not to give treated bio-medical waste with municipal solid waste;
(g) provide training to all its health care workers and others, involved in handling of bio medical waste at the time of induction and thereafter at least once every year and the details of training programmes conducted, number of personnel trained and number of personnel not undergone any training shall be provided in the Annual Report;
(h) immunise all its health care workers and others, involved in handling of bio-medical waste for protection against diseases including Hepatitis B and Tetanus that are likely to be transmitted by handling of bio- medical waste, in the manner as prescribed in the National Immunisation Policy or the guidelines of the Ministry of Health and Family Welfare issued from time to time;
(i) establish a Bar-Code System for bags or containers containing bio-medical waste to be sent out of the premises or place for any purpose within one year from the date of the notification of these rules;
::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 :::
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(j) ensure segregation of liquid chemical waste at source and ensure pre-treatment or neutralisation prior to mixing with other effluent generated from health care facilities;
(k) ensure treatment and disposal of liquid waste in accordance with the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); 5
(l) ensure occupational safety of all its health care workers and others involved in handling of biomedical waste by providing appropriate and adequate personal protective equipments;
(m) conduct health check up at the time of induction and at least once in a year for all its health care workers and others involved in handling of bio-medical waste and maintain the records for the same;
(n) maintain and update on day to day basis the bio-medical waste management register and display the monthly record on its website according to the bio-medical waste generated in terms of category and colour coding as specified in Schedule I;
(o) report major accidents including accidents caused by fire hazards, blasts during handling of biomedical waste and the remedial action taken and the records relevant thereto, ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 115 (including nil report) in Form I to the prescribed authority and also along with the annual report;
(p) make available the annual report on its web-site and all the health care facilities shall make own website within two years from the date of notification of these rules;
(q) inform the prescribed authority immediately in case the operator of a facility does not collect the bio-medical waste within the intended time or as per the agreed time;
(r) establish a system to review and monitor the activities related to bio-medical waste management, either through an existing committee or by forming a new committee and the Committee shall meet once in every six months and the record of the minutes of the meetings of this committee shall be submitted along with the annual report to the prescribed authority and the healthcare establishments having less than thirty beds shall designate a qualified person to review and monitor the activities relating to bio-medical waste management within that establishment and submit the annual report;
(s) maintain all record for operation of incineration, hydro or autoclaving etc., for a period of five years;
(t) existing incinerators to achieve the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 116 standards for treatment and disposal of bio- medical waste as specified in Schedule II for retention time in secondary chamber and Dioxin and Furans within two years from the date of this notification."
74. It is thus, evident that the occupier has to take as many as 20 steps to ensure scientific disposal of medical waste including making a provision within the premises for a safe, ventilated and secured location for storage of segregated biomedical waste; to dispose of solid waste other than bio-medical waste in accordance with the provisions of respective waste management rules; not to give treated bio-medical waste with municipal solid waste and to impart training to all health workers etc.
75. Now, as far as the respondent no. 5 is concerned, the land has been purchased by the Nagar Palika and the garbage dumped in River Dhela has been retrieved. The bye-laws have been framed and sent to the State Government for its notification by few local bodies.
76. The Municipal bodies/Nagar Panchayats are required to dispose all the waste garbage in a scientific method to avoid contamination of all rivers and seepage of harmful chemicals in the underground water. The non-scientific disposal of garbage also causes air pollution ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:36 ::: pil33.18 117 which degrades the quality of air and public health. Every citizen has a fundamental right to get clean and fresh air under Article 21 of the Constitution of India. The statutory authorities are remiss in discharge of their duties. The municipal laws require scientific disposal of garbage. The garbage is required to be collected, stored, segregated and transported and disposed of in a scientific manner in landfills. It is the responsibility of the respondent no. 6 also to ensure that the provisions of Environmental Protection Act, 1986 and the Rules, framed thereunder, are followed in letter and spirit. It is the duty of the Secretary, Executive Officers, Municipality/Panchyati Raj Institutions to ensure that the Solid Waste Management Rules, 2016 are implemented in letter and spirit." . The observations in para 76 reproduced herein above would make it abundantly clear that, Respondents are obliged to scrupulously follow the mandate of said rules and also the provisions of the Environment Protection Act, 1986 and Rules thereunder, so as to avoid breach of fundamental rights to get clean and fresh air to the citizens residing in the vicinity wherein such site is ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 118 situate.
26. It would be also useful for guidance of Respondent No.7 and the State Authorities to keep in view the views expressed in "Briefing Note on Aurangabad Waste Management and at Naregaon- Mandaki Dumsite" prepared by Member, Supreme Court Committee for Solid Waste Management National Expert, Swachh Bharat Mission, Government of India, Member, Solid Waste Management Expert Committee, Bengaluru, copy of which is placed on record.
27. We also find considerable force in the argument of learned counsel appearing for the Petitioners that, there should be equitable sharing of waste generated from Aurangabad city and such sharing should be by the citizens from whom every day garbage is collected. We also find considerable force in the argument of learned counsel appearing for the Petitioners that, due to continuous use for more than 33 years of the site ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 119 at Gut Nos.78 and 79 at village Mandki for dumping the solid waste/garbage, the water has become contaminated as shown in the report of the study undertaken by one Mohammed Asef Iqbal, Ph.D. Student of Dr. Babasaheb Ambedkar Marathwada University, Aurangabad. Due to creation of methyl gas there has been instances of periodical fire. There is no buffer zone of 5 kilo meters and therefore further use of said site at Mandki village for the purpose of solid waste/ garbage is completely ruled out. It further appears that in the year 1997 notice was published that no further dumping of the solid waste/ garbage should be at the said site keeping in view the provisions of the Aircraft Act, 1934 and the Rules there under. The Corporation has not brought anything on record that it has taken no objection certificate or permissions time to time from the concerned Departments of the State Government or Central Government for continuous use of said site i.e. Gut Nos.78 and 79 of village Mandki, as per the provisions of Rules of 2000, the Rules of 2016 and ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 120 relevant Government Resolutions, Circulars and guidelines issued in this respect.
28. Learned counsel for the Petitioners is also right in her submissions that Respondent No.7, State Government and its Officials have not bothered to see the social impact of such dumping at said site and consequences of it in increasing mortality rates, respiratory arrest and lung cancer etc. There are different rules for disposal of plastic / medical and electronic waste and Respondent No. 7 did not follow the same for years together.
29. It is true that now the Chief Secretary of Government of Maharashtra has filed the affidavit wherein it is stated that, the Government of Maharashtra has prepared the State policy for solid waste management considering the provisions of Solid Waste Management (SWM) Rules, 2016. It is further stated that, under Swachh Bharat Mission every Urban Local Bodies (ULB) are ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 121 required to prepare and implement Solid Waste Management Detailed Project Report (DPR). The DPRs to be prepared under Swachh Bharat Mission shall be on line with Solid Waste Management Rules 2016 and the Swachh Bharat Mission guidelines. It is further stated that, the State Government has taken the following steps for effective implementation of Solid Waste Management under Swachh Bharat Mission :
(i) In view of the failure of solid waste management projects on ground, the State has developed integrated approach for solid waste management. This approach is included in all DPRs prepared under Swachh Bharat Mission [SBM].
(ii) The main focus of DPRs being prepared under SBM is on segregation of waste at source by generators, composting from wet waste, recycling and recovery of dry waste through Material Recovery Facilities, development of landfill sites and bio-mining of legacy dumps. To ensure quality of the DPRs following actions have been taken by the State:::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 :::
pil33.18 122 a. One agency for each division [total six agencies] is appointed for SWM DPR preparation under Swachh Bharat Mission.
b. All these agencies are empanelled by Ministry of Housing and Urban Affairs [MoHUA] for DPR preparation under SBM.
c. To ensure quality, National Environment Engineering Research Institute [NEERI] is appointed for appraisal of DPRs and after appraisal of DPRs by NEERI, DPRs are forwarded to Maharashtra Jeevan Pradhikaran [MJP] for technical sanction.
d. DPR preparation process is underway and already 152 DPRs are prepared and approved by the High Power Committee and MoHUA.
e. All SWM DPRs are being prepared as per the SBM guidelines and SWM Rules, 2016.
f. Under SBM for each DPR Central Govt.
provides 35% of grant and STate Govt. provides 23.3% of grant to ULBs.
g. Till today 152 DPRs have been prepared and approved and DPRs of all remaining towns shall be approved by April, 2018.
h. State has also established an implementation ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 123 framework to ensure implementation of approved SWM DPRs within mission period i.e. upto October 2019.
. It is further stated in the said affidavit that, the High Court on 28.02.2018 directed the State to intervene in this matter and resolve the issue of Solid Waste Management within the city of Aurangabad. Accordingly, in compliance of the directions so issued, the State has intervened and following steps have been taken:
(I) State Urban Development Department issued directions to Aurangabad Municipal Corporation to engage an NGO for segregation at source and behaviour changes.
(II) Monitoring Committee under the Chairmanship of Divisional Commissioner has been constituted vide Government Resolution dated 01.03.2018 at Divisional Level.
(III) Decision has been taken to constitute State Level Monitoring Committee under the Chairmanship of Secretary.
. It is further stated in the said ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 124 affidavit filed by the Chief Secretary that, Aurangabad Municipal Corporation has submitted their Solid Waste Management DPR on 17th February, 2018 to State for approval of High Power Committee under Swachh Bharat Mission. The main focus of Aurangabad SWM DPR is segregation of waste at source by generators, decentralized and centralized composting from wet waste, bio-gas plant for organic waste, recycling and recovery of dry waste through Material Recovery Facilities. Accordingly, the DPR was submitted by Aurangabad Municipal Corporation on 17.02.2018. However, as the said DPR required some revision as per the provisions of State Policy on Solid Waste Management the same has been referred to M/s. Eco- Pro, an Agency authorized by Government of Maharashtra.
. In para 9 of the affidavit filed by the Chief Secretary, it is stated thus:
"9. I further say and submit that considering ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 125 the situation in Aurangabad Corporation area, the State has decided that immediate short terms measures such as segregation and composting of wet waste shall be implemented immediately in following manner.
Activity Timeline
Revision of DPR By 8th March 2018
Technical Sanction By 15th March 2018
of DPR by MJP
Approval of DPR by By 17th March 2018
HPC
Release of State By 21st March 2018
share
Release of central By 30th April 2018
share
Whereas, the measures such as biogas plant, decentralized/ centralized processing facility, scientific land fill shall be implemented as per time schedule provided below.
Activity Timeline
DPR • Segregation, collection
implementation & Transportation: 3 months
by Aurangabad
Municipal • Decentralized /centralized
Corporation composting: 3 months
• Bio-gas plant: 6 months
• Scientific
landfill : 8 months
::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 :::
pil33.18
126
• Scientific closure
of legacy dump at
Naregaon: 12 months
30. We appreciate the said gesture and impress upon the State and State Officials and also Respondent No.7 to take future and further steps only after taking into confidence the respective Grampanchayats, Corporator of said area and public representative at the time of taking steps for scientific closure of legacy dump at Naregaon.
31. In the light of discussion herein above and considering the peculiar facts of this case in its entirety and general problems faced by the public at Mandki, Gopalpur, Pakhri and Mahalpimpri, we have arrived at a conclusion that Respondent No.7 did not show seriousness and the State Officials were not serious in discharging their obligation to press into service the scientific method of disposal of solid waste / garbage dumped at the said site of village Mandki ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 127 and as a result and as informed by the counsel for the Petitioners that more than 20,00,000 cubic ton solid waste / garbage is lying on the said site as it is. There is no serious attempt of Respondent No.7 to set up solid waste disposal plant at the site. The State Government and Urban Development Department which has administrative control over the local bodies i.e. Municipal Councils and the Municipal Corporation has not taken effective steps to address serious issue and taken remedial steps to compel respondent No. 7 to strictly follow the procedure for processing solid waste dumped at said site in accordance with the Rules prescribed in that behalf. The method adopted by Respondent No.7 for dumping of solid waste / garbage in unscientific manner at the said site has created numerous problems of health as well as damaged to environment in the vicinity of the said site creating air as well as water pollution. At no point of time, at least from the year 2004 onwards Respondent No.7 has adopted scientific method keeping in view the Rules of 2000 or the ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 128 Rules of 2016 for disposal of the solid waste / garbage at the said site.
32. From the pleadings in the Petition and the documents placed before us and the replies filed by the respective Respondents and considering the issue in its entirety, we find that Corporation and its Authority have failed to deal with the issue raised in the Petition, seriously. The State Authorities, Urban Development Department could not effectively issue directions, resort to appropriate methods in directing Respondent No.7 Corporation authorities seeking compliance of the mandatory provisions of law. It is true that the Chief Secretary of the Government of Maharashtra has filed the affidavit now, mentioning therein time-line so as to take effective steps for scientific disposal of the solid waste/ garbage within one year from today in respect of said site and also the problems faced by the citizens due to dumping of garbage at nearer places in the city. However, the said ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 129 steps can be said to be taken by the State Government for the future.
33. The Division Bench of the Bombay High Court at Principal Seat [CORAM: A.S.OKA & C.V. BHADANG, JJ.] in the order dated 26th and 29th February, 2016 in Civil Application No.221 of 2013 in Public Interest Litigation No.217 of 2009 [Municipal Corporation of Greater Mumbai Vs. Shri Pandurang Patil & Anr.], had expressed serious concerned about dumping made at the sites at Deonar and Mulund which were required to be closed down long back since those were not in conformity with the requirements of the MSW Rules. In the said judgment the opinion is expressed by the Division Bench that the MSW Rules came into force on 3rd October, 2000, neither the State Government nor the Corporation have bothered to comply with the MSW Rules. Schedule-I of the MSW Rules contains implementation schedule. Read with Rule 4 of the MSW Rules, the Schedule-I provides that it is the obligation of the Municipal ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 130 Authority to set up waste disposal and processing facilities in terms of the said Rules by 31st December, 2003. In the present case also, there is non-adherence to aforesaid Rules of 2000 and also non implementation of the said Rules in accordance with the Schedule-I read with Rule 4 of the MSW Rules.
34. In the case of A.P. Pollution Control Board II Vs. Prof. M.V.Nayudu (RETD.) and others, cited supra, while dealing with the provisions of Environment [Protection] Act, 1986, Article 21 of the Constitution of India and also Water [Prevention and Control of Pollution] Act, 1974, the Supreme Court in para 3 to 11 held as under:
"3. Drinking water is of primary importance in any country. In fact, India is a party to the resolution of the UNO passed during the United Nations Water Conference in 1977 as under:
"All people, whatever their stage of development and their social and economic conditions, ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 ::: pil33.18 131 have the right to have access to drinking water in quantum and of a quality equal to their basic needs."
Thus, the right to access to drinking water is fundamental to life and there is a duty on the State under Article 21 to provide clean drinking water to its citizens.
4. Adverting to the above right declared in the aforesaid Resolution, in Narmada Bachao Andolan v. Union of India2 (Scale at p. 124 : SCC p. 767, para 248), Kirpal, J. observed:
"248. Water is the basic need for the survival of human beings and is part of the right to life and human rights as enshrined in Article 21 of the Constitution of India...."
5. There is, therefore, a need to take into account the right to a healthy environment along with the right to sustainable development and balance them. Competing human rights to healthy environment and sustainable development.::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:37 :::
pil33.18 132
6. There is building up, in various countries, a concept that right to healthy environment and to sustainable development are fundamental human rights implicit in the right to "life".
7. Our Supreme Court was one of the first Courts to develop the concept of right to "healthy environment" as part of the right to "life" under Article 21 of our Constitution. (See Bandhua Mukti Morcha v. Union of India3.) This principle has now been adopted in various countries today.
8. In today's emerging jurisprudence, environmental rights which encompass a group of collective rights are described as "third-generation" rights. The "first-generation" rights are generally political rights such as those found in the International Convention on Civil & Political Rights while "second- generation" rights are social and economic rights as found in the International Covenant on Economic, Social and Cultural Rights. "Right to Healthy Environment", (See Vol. 25) 2000 Columbia Journal of Environment Law by ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 133 John Lee p. 283, at pp. 293-294, fn. 29)
9. The right to sustainable development has been declared by the UN General Assembly to be an inalienable human right (Declaration on the Right to Development) (1986). The 1992 Rio Conference declared that human beings are at the centre of concerns for sustainable development. Human beings are entitled to a healthy and productive life in harmony with nature. (Principle
1). In order to achieve "sustainable development, environmental protection shall constitute an integral part of development process and cannot be considered in isolation of it". The 1997 Earth Summit meeting of 100 nations in New York reflected the above principles. The European Court of Justice, emphasised in Portugal v. F.C. Council the need to promote sustainable development while taking into account the environment. (3 C.M.L.R. 331) (1997) (ibid Columbia Journal of Environmental Law, p. 283)
10. In Lopez Ostra v. Spain4 the European Court at Strasbourg has held that the result of environmental ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 134 degradation might affect an individual's well being so as to deprive him of enjoyment of private and family life. Under Article 8 of the European Convention, everyone is guaranteed the right to respect for his private and family life. (See also, Powell & Rayner v. U.K.5.) The Inter-American Commission on Human Rights has found a similar linkage (Yanomani Indians v. Brazil6). The Commission found that Brazil had violated the Yanomani Indians' right to life by not taking measures to prevent the environmental damage. The Philippine Supreme Court dealt with the action against Government not to continue licensing agreements permitting deforestation so that the right to a "balanced and healthful ecology in accordance with the rhythm and harmony of nature" is not affected7. The judgment was based on "intergenerational responsibility". In Fundepublico v. Mayor of Bugalagrande the Constitutional Court of Columbia (17-6-1992) held in favour of the right to healthy environment as a fundamental human right and treated the right as part of customary international law. The Court permitted popular-action mechanism. The ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 135 Supreme Court of South Africa, in a recent case in Wildlife Society of Southern Africa v. Minister of Environmental Affairs and Tourism of the Republic of South Africa8 (dated 27-6- 1996) dealt with the right to healthy environment. About 60 nations since 1990 have recognised in their Constitutions a right to a healthy environment as a corollary duty to defend the environment (Columbia Journal of Environmental Law, ibid pp. 318-19).
11. Thus, the concept of a healthy environment as a part of the fundamental right to life, developed by our Supreme Court, is finding acceptance in various countries side by side with the right to development."
35. In the light of discussion herein above there is no slightest room for doubt that Respondent No.7 in utter disregard to the provisions of the MSW Rules of 2000 and the SWM Rules of 2016, Water [Prevention and Control of Pollution] Act, 1974 and the Environment [Protection] Act, 1986, Air [Prevention and ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 136 Control of Pollution] Act, 1981, continued to dump solid waste/ garbage at the site of Gut Nos.78 and 79 of village Mandki. If we further allow Respondent No.7 to continue its activity of dumping of new solid, dry or wet waste/garbage on the site of Gut Nos.78 and 79 of village Mandki, it would be nothing less than inviting risk of deaths of human beings, animals, birds etc. apart from ill-effects/ serious diseases which have already been spread over in the said vicinity, which may also amount to travesty of justice. Therefore, we pass the following order:
O R D E R (I) We permanently restrain Respondent No.7 from dumping new solid, dry or wet waste/ garbage in Gut Nos.78 and 79 of village Mandki.
(II) We direct Respondent Nos.1, 2, 3, 4, 5, 6 and 8 to ensure that no new ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 137 solid, dry or wet waste is permitted to be dumped for disposal on the land situate at Gut Nos.78 and 79 of village Mandki.
(III) We direct Respondent No.7 to
ensure implementation of the
directions / guidelines issued by the Hon'ble Supreme Court and the High Court as well as Solid Waste Management Rules, 2016 with regard to segregation of waste by evolving a strict policy and imposing penalty against wrong doers.
(IV) We direct Respondents to ensure scientific closure of legacy dump at Naregaon as per time-line/limit stated in the affidavit of the Chief Secretary to the Government of Maharashtra, in consultation with respective Grampanchayats, however, keeping in view the provisions of the Solid Waste ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 138 Management Rules, 2016.
(V) The State Government would be at liberty to set up a team of Experts from a reputed Technology Institution for rendering scientific assistance with regard to the disposal of the waste dump and restoration of the land situate at Gut Nos. 78 and 79 of village Mandki to habitable characteristics.
(VI) We grant liberty to the Petitioners to approach the appropriate Forum with better and material particulars and details to initiate civil or criminal action against concerned erring Officers/ Public Servants, in accordance with the provisions of law. For the said purpose, the Petitioners should be allowed by Respondent No.7 to take inspection of relevant records available ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 139 with Respondent No.7 as regards to the arrangements made, expenses incurred, sanitary and hygienic problems posed by improper disposal of solid waste by Respondent No.7.
(VII) We direct the Respondents to take necessary measures, after consultation with bio-tech and scientific agencies including Respondent No.6 to reverse the environmental impact caused to the land situate at Gut Nos.
78 and 79 of village Mandki and its adjoining area due to the dumping of solid waste / garbage for more than 33 years in unscientific manner and contrary to the provisions of the Municipal Solid Waste (Management and Handling) Rules, 2000 and Solid Waste Management Rules, 2016.
(VIII) We direct the Chief Secretary ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 140 to the Government of Maharashtra to cause the enquiry by calling necessary records / files from the concerned Department and also Respondent No.7 for not abiding the directions contained in the order dated 7th July, 2003, passed by the Division Bench of this Court (CORAM: B.H. MARLAPALLE & P.V. KAKADE, JJ.) in Writ Petition No.3253 of 2002 (Dr.Shaikh Mohammed Shafeeque Ahmed and another Vs. The Municipal Corporation of City of Aurangabad and others) to finalize the issue which was raised in the said Writ Petition for finalizing another site for the purpose of disposal of solid waste / garbage keeping in view the provisions of the Municipal Solid Waste (Management and Handling) Rules, 2000, then in force, within three months from today and submit the report to this Court to that effect.::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 :::
pil33.18 141 (IX) We direct Respondent No.6 to take to the logical end the show cause notices dated 20th November, 2017 and 27th February, 2018 issued to Respondent No.7 and depending upon the reply filed by Respondent No.7 and after following the principles of natural justice, take the appropriate decision, pass the necessary orders or initiate the criminal prosecution as permissible under the provisions of the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Prevention and Control of Pollution) Act, 1986 read with Solid Waste Management Rules, 2016.
(X) We grant liberty to the Petitioners to file appropriate proceedings as permissible in law for redressal of their grievances for compensation due to the ill-effects to ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 142 their health, if any, due to dumping of solid waste / garbage continuously for more than 33 years without following the mandates of the Municipal Solid Waste (Management and Handling) Rules, 2000, Solid Waste Management Rules, 2016, Water [Prevention and Control of Pollution] Act, 1974, the Environment [Protection] Act, 1986 and Air [Prevention and Control of Pollution] Act, 1981. Needless to observe that in case such proceedings are initiated, the concerned Forum to deal with the same in accordance with the law and relevant procedure.
(XI) We direct Respondent No.7 to consider request of the residents of villagers residing in the vicinity of villages, namely, Mandki, Gopalpur, Pakhri and Mahalpimpri, to provide clean drinking water from the Aurangabad ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 143 Municipal Corporation pipe-line passing through the said villages, within three months from today keeping in view the relevant provisions / procedure.
(XII) Rule is made absolute on above terms. Public Interest Litigation stands disposed of accordingly.
(XIII) All concerned to act upon authenticated copy of this order.
(XIV) List for compliance of aforesaid directions contained in clause (VIII) of this order, on 18th June, 2018, under caption "For Compliance".
[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/MAR18 . After pronouncement, learned counsel appearing for Respondent No.7 prays for stay to the effect and operation of the Judgment and ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 ::: pil33.18 144 Order. The prayer is vehemently opposed by learned counsel appearing for the Petitioners. In the light of reasons assigned in the Judgment, we are unable to persuade ourselves to accede to the prayer of the counsel appearing for Respondent No.7. Hence the prayer stands rejected. [S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/MAR18 ::: Uploaded on - 09/03/2018 ::: Downloaded on - 10/03/2018 01:54:38 :::