appeal no.100 of 2015 (sz) - national green tribunal - judgment

8/20/2019 Appeal No.100 of 2015 (SZ) - National Green Tribunal - Judgment

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BEFORE THE NATIONAL GREEN TRIBUNAL

SOUTHERN ZONAL BENCH

CHENNAI

Application No. 100 of 2015 (SZ)

1. M. Paul Rose

Vice-President

Kombuthurai Oor Nala Committee

92, Kombuthurai

Kayalpattanam Municipality

Thiruchendur Taluk

Tuticorin District

2. M. Senthamil Selvan

Secretary

Kombuthurai Mangrove Forest Protection Committee

CEDA Trust, Tsunami Rehabilitation Project

Kombuthurai

Kayalpattinam Muncipality

Thiruchendur Taluk

Tuticorin District ....Applicants

Vs.

1. The Secretary to Government

Department of Environment, Forest and Climate Change

State Government of Tamil Nadu

Chennai

2. The Commissioner

Town & Country Planning

807, Anna SalaiChennai-600 002

3. Deputy Director

Town and Country Planning

Tirunelveli Division

Tirunelveli District

4. The District Collector

CollectorateTuticorin

5. The Member Secretary

Local Town Planning Officer

Kayalpattinam

Tuticorin District


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ORDER

QUORAM

Hon’ble Justice Dr. P. Jyothimani (Judicial Member)

Hon’ble Professor Dr. R. Nagendran (Expert Member)

_________________________________________________________________

Delivered by Justice Dr.P. Jyothimani dated 25th

January, 2016

_________________________________________________________________

1) Whether the judgement is allowed to be published on the internet ----- yes / no

2) Whether the judgement is to be published in the All India NGT Report -----yes / no

1. The 1st applicant is stated to be the Vice president of the Kombuthurai Oor Nala

Committee which has authorised him to file the application in the resolution dated 05-

04-2015 and the 2nd

applicant is stated to be Secretary of Kombuthurai Mangrove

Forest Protection Committee functioning under the auspices of CEDA Trust which

has undertaken many projects towards Tsunami rehabilitation and projecting various

environmental causes. The applicants are stated to be aggrieved by the action of 6th

respondent Municipality in attempting to setup a municipal land fill facility in

Survey. No. 278 Kayalpattinam South village which according to the applicants is in

violation of Coastal Regulation Zone Notification,1991, Municipal Solid Wastes

(Management and Handling) Rules, 2000 (MSW Rules), Environmental Impact

Assessment (EIA) Notification 2006, Water (Prevention and Control of Pollution )

Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and other provisions

of law and therefore prayed for a permanent injunction restraining the said

respondents from establishing/setting up of any composting yard or bio-methanation

plant or any solid waste land fill or procuring facility in the said Survey Number and

also sought for a direction against respondent Nos. 1 and 11 to initiate appropriate

action against 6th

and 7th

respondents for violating EIA Notification, 2006 and to

direct respondent Nos.1, 8 and 11 to take appropriate action against respondent Nos. 6

and 7 for violating MSW Rules 2000, Water Act 1974, Air Act1981 and to restore its

status quo by demolishing all constructions.

2. According to the applicants, the Kayalpattinam Municipality which is situated on the

coastal Bay of Bengal has a total population of 50,000 divided into 18 wards, it being


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one of the very thickly populated areas in Tuticorine District having a total area of 12

sq km. As on date, the said Municipality has been upgraded as 2nd

grade Municipality

and nearly 8000 MT of waste generated every day is dumped in Papprapalli region in

ward No.13. It is stated that based on the allotment of fund by the Government for the

purchase of land and setting up of biomethanation plant, many areas were considered

and rejected and ultimately S.R.No. 278 has been selected by the Municipality with

vested interest of hiking the market value to enable real estate business to flourish and

for the reason best known to the Municipality. The said area in S.R.No. 278 is

covered in 25 acres and according to the applicant it is in the midst of thickly

populated area and is situated within 500 m of Kombuthurai Kadakudi Village and is

an Ecologically Sensitive Area (ESA) situated within 30m from Thamarabharani river

estuary catering to the needs of nearly 10000 acres of agricultural lands. It is also a

rich biodiversity area with an abundant scope for development of mangrove forest. In

fact, 1 lakh saplings of mangrove were planted in the year 2005 covering 20 ha

situated within 50 m from the proposed land site situated at S.R.No.278. The

mangrove forests which are of great environmental significance and socio economic

value are situated on the east coast along the Bay of Bengal to an extent of 60%, on

the west coast and to an extent of 27% and 13% on the Andaman Nicobar Islands

with larger deltas and runoffs due to the presence of mighty rivers. It serves hatchery

for fishes and prawns, prevents soil erosion, reduces greenhouse gas emissions and

contributes to rain forest. The mangroves are protected under the Coastal Regulation

Zone Notification, EIA Notification 1994 & 2006, Indian Forest Act 1927 and Forest

(Conservation) Act 1980.

3. It is the case of the applicants that 2/3 portion of S.R.No. 278 has been declared as

CRZ-1 which includes the approach road to the landfill site and approach road to

S.R.No. 278. The site proposed is prone to cyclones and storms as it is situated near

Kayalpattinam sea area and a large number of cashew trees have been planted in a

stretch of 15 km which are situated 200 m from the site. According to the applicants,

the area is a breeding ground for fishes and the environmental factors dictate that any

developmental activity near the area like landfill and composting yard will affect the

ecological balance by virtue of large scale dumping of municipal waste resulting in


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leachate. It is also stated that the site selected is located within 500 m of sea and

closer to HTL and therefore within CRZ zone and no clearance has been obtained as

per CRZ Notification, 2011. Even though such clearance cannot be granted, even the

road to the site would be required to be built under the CRZ-1 area.

4. It is also stated that the State Pollution Control Board (the Board) has rejected the

proposal for landfill and compost yard in S.R.No. 278 and directed the Municipality

to find alternative site in the communication dated 12-01-2015. Further, the said

respondent No. 6 and 7 have not obtained consent from the Board under Water and

Air Acts which contemplate that no person shall without previous consent of the

Board establish or operate any Industrial Plant, for which the applicants have relied

upon a Supreme Court Judgement in A.P Pollution Control Board I I v. Prof. M.V.

Nayudu, (2001) 2 SCC 62 . Further, it is stated that while the MSW Rules, 2000

require a mandatory prior permission by the Board by way of authorisation which can

be done only after considering the views of other agencies and in as much as the

Board has already rejected the application for Consent to Operate, in the absence of

any permission under the MSW Rules the 6th

and 7th

respondents have no right to

proceed with the project. The applicants have also narrated that the site selection itself

is not in conformity with the mandate of MSW Rules, 2000 firstly, because it is the

Development Authority which has to identify the landfill which shall be based on

examination of environmental issues decided in coordination with Department of

Urban Development of State or the Union Territory with proper documentation of

construction plan as well as closure plan, the biomedical waste should be disposed in

accordance with the Biomedical Waste (Management and Handling) Rules, 1998 and

hazardous waste to be managed in accordance with Hazardous Waste (Management

and Handling) Rules 1989, the landfill site should be large enough to last for 20-25

years, it should be away from human habitation clusters, forest areas, water bodies,

monuments, national parks, wetlands and places of important cultural, historical and

religious interests, maintenance of a buffer zone of no development area

incorporating it in the Town Planning and Land-Use Plans and that the site selection

is improper since it is close to at least 2 schools which are situated within 800 m and

the St.Stephen’s Church within 400 m and therefore, the selection of the site without


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considering the above said environmental factors are prone to cause harmful effects.

The subsequent resolution of Municipality dated 25-04-2014 in approving the tender

in favour of 10th

respondent for construction of Composting and Bio Methanation

Plant giving a chance to do away with the compulsory requirement of 500 m no

development buffer zone is a statutory violation and therefore all the said resolutions

as well as choosing of the tender are void and liable to be quashed. It is stated that in

fact the Chairman of 7th

respondent Municipality has recorded an objection and in

spite of the majority resolution, the work order was issued in favour of 10th

respondent on 15-12-2014.

5. It is further stated by the applicant that the 6th

respondent has not obtained prior EC as

required under Entry No.7(i) of schedule to EIA Notification, 2006 wherein Common

Municipal Solid Waste Facility is listed in category ‘B’ requiring EC from State

Environment Impact Assessment Authority (SEIAA). In the absence of prior EC, the

6th

and 7th

respondents cannot carry on any construction activity and therefore

construction of compound wall by the said respondents without prior EC is not

permissible and even as on date the Municipality has not submitted EC before the

Authority concerned. The applicants also relied upon the Judgement of this Tribunal

in Rayons – Enl ighting Humanity & another v. MoEF in Application No.86 of 2013,

where the MSW facility was directed to be closed. The applicant also questions the

project as opposed to the Judgements of Hon’ble Supreme Court in Karnataka

I ndustri al Areas Development Board v. K.C. Kanjappa and Ors., and State of

Uttaranchal v. Balwant singh Chaufal & Ors., wherein the Hon’ble Supreme Court

has held that before a project come into force a balance is to be stuck between

sustainable development and environment and that was held even in the land

acquisition process and as far the present project of the 6th

and 7th

respondents are

concerned, the same are to be brought for Environmental Impact Assessment. Raising

the above points and also other legal grounds including that the act of said

respondents violates the rights conferred under Article 21 of the Constitution of India

and there was no Environmental Impact Assessment study made in this case and

consequently no public hearing was conducted and the applicants have made many


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representations and as the same were not considered, the application has been filed

before this Tribunal with the prayers stated above.

6. The 6th

respondent, Municipality in its reply has stated that the Kayalpattinam

Municipality is a second grade Municipal and the Municipality has applied for

Authorisation for the proposed Municipality Solid Waste Facility at SF No. 278/1

Kayalpattinam village before the Board on 08-12-2014 and the application was

retuned saying that the site was classified as falling under ‘water logged area’ as per

the Revised Coastal Regulation Zone Map, with a direction to the Municipality to

select an alternate site for MSW processing facility in the communication dated 12-

01-2015. It is stated that after subdividing the site as S.No. 278/1B, the Municipality

has again applied on 24-03-2015 afresh requesting to issue NOC for MSW Facility at

S. No.278/1B in the extent of 4.2 acres at Kayalpattinam South village. The

Municipality was also directed to furnish the Land Use Classification Certificate and

a certificate from Anna University Remote Sensing Department to show that the land

does not fall under Coastal Regulation Zone. Accordingly, the Anna University

Remote Sensing Department conducted a GPS Survey regarding the distance of the

proposed site at 278 /1B and HTL of sea coast and from the ‘Creek ’ on the eastern

side of the proposed site. On submission of the said report, the Joint Chief

Environmental Engineer, Madurai in his proceedings dated 25-05-2015 has granted

Authorisation.

7. In addition to that, the Municipality has also made online application under Water and

Air Acts for consent on 10-04-2015 for the proposed Biomethanation Plant to install

an electric power Plant of 400 KV capacity to generate electricity by digesting of

waste vegetable, market waste etc., in an extent of 0.3 acre within S. R. No. 278/1B.

The additional technical details required by the Board for the Bioamethanation Plant

were furnished on 11-05-2015 and ultimately after placing before the Zonal Level

consent Clearance Committee, consent order was issued on 24-06-2015 under Water

and Air Acts in favour of Municipality for installing 5 TPD capacity Biomethanation

cum Power Generation Plant. It is also stated that the 6th

respondent Municipality has

a total population of 40542 in an extent of 12.50 sq km. It is also stated that

Kayalpattinam Municipal area generates 12T of municipal solid waste every day out


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of which 8T are biodegradable waste and the Municipality has no proper compositing

yard as there is no sufficient land, apart from the fact that there is no segregation

facility to treat the municipal solid waste and at present the Municipality is dumping

the waste in Papaarapalli region which is within 200 m of the habitation. It is stated

that while it is the responsibility of the Municipality to obtain Authorisation under

Solid waste (Management and handling) Rules 2000, the Papaarapalli region in which

the municipal solid wastes are dumped is inadequate for further development. With

an allotted amount of Rs. 5 lakhs by the Government for purchase of Compost Yard

in 2006, the Municipality has been searching for a suitable land. It is further stated

that the Municipality has been allotted Rs. 90 lakhs to process the biodegrable waste

into power generation and organic manure as by-products and the same was unable to

be started for want of land facility. The Collector has suggested three places on 08-

01-2013, a place for Biomethanation Plant along with a big ground site situated in

392/5 which was subsequently rejected by the Council since those sites were in the

midst of habitation. Ultimately, the Regional Executive Engineer has inspected and

suggested 278/1B for setting up the Biomethanation Plant as per inspection dated 17-

10-2014. The Council had also approved it in the resolution dated 11-10-2013 and 25-

11-2014. It is stated that while S.R.No. 392/5, burial ground can be used for the

Biomethanation Plant it is inadequate for establishing the Composting Yard. Both the

Biomethanation Plant as well as Composting Yard must be situated adjacent to each

other to be cost effective and that is the reason why the Council has resolved to have

both the Biomethanation Plant and Composting Yard at S.R.No. 278/1B. It is stated

that no development zone will be mentioned around landfill site and incorporated in

Town Planning regarding land use plans. It is further stated that 278/1B is surrounded

by vacant lands with thorny plants on all four sides and there are no habitations

within 950 m which is more than 500 m as per the Rules. It is also stated that the total

extent is 4.5 acres and there are no water channels nearby except a back water creek

which is situated 121 m from the shortest boundary of the site and the HTL is at a

distance of 535 m as per the GPS survey done by Anna University, an authorised

agency of MoEF and CC, Government of India.


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8. It is also stated that there are no mangrove vegetation in the vicinity and the same is

also mentioned in the report of Anna University and Casuarina trees are grown along

the coastal line of the sea. The approach road will be formed on the western side of

the proposed site which is outside of the CRZ area and there is a cart track which is

available at Kayalpattinam south part. The HTL on the eastern side of the proposed

site is at a distance of 530 m. It is also stated that every area in the Municipal Zone is

prone to cyclone irrespective of the location and that is not one of the criteria for

establishment of a Solid Waste Management Facility. As the proposed site is 530 m

away from the HTL of sea, no clearance is required from Coastal Zone Management

Authority as per CRZ Notification 2011. It is also stated that the contract has been

finalised for establishment of Biomethanation Plant and placed before the Council

and work order was given. The Municipality has also obtained new Patta for the

subdivided area and applied for authorisation on 24-03-2015 and applied online for

the establishment of a Biomethanation Power Plant in the remaining areas of 0.3 acres

on 10-04-2015 and thus the Municipality has complied with all legal requirements.

That apart, the Municipality has applied for Authorisation under MSW Rules, 2000

apart from applying separately for consent under Air and Water Acts. It is stated that

regarding Bio-medical wastes, as per the rules the hospitals are responsible and such

waste in Tuticorine District is collected through a special vehicle and taken to

Common Biomedical Treatment Facility at Nanguneri, Tirunelveli District. The

hazardous waste generated from industries are disposed of, as per Hazardous Waste

(Management and Handling) Rules, 1989 which has no relevance to the municipal

solid waste. There are no schools, hospitals or residences surrounding the proposed

project site up to 1 km except a Church which is located at distance of 1 km on the

southern side. The Municipal Council considered all environmental aspects and

public interest before deciding to set up the composting yard. The Municipality is a

small town including CRZ zone with major area occupied by habitation and all

factors were considered before choosing the place. The project which is needed for a

civilised society to avoid dumping of waste in open and burning, is a Government

project proposed by following all mandatory procedures enunciated by law. The legal

grounds raised by the applicant are denied and it is especially stated that after 9 years


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as there are no alternate locations available and the plant itself has been proposed for

maintaining clean environment in the habitation, the site has been chosen. It is stated

that the applicant who originally filed a Writ Petition in High Court of Madras in its

Madurai Bench in W.P. No. 7730 of 2015 which was disposed of, has moved before

this Tribunal for the same prayer in the above said application. Therefore, it is stated

that the application is devoid of merits and liable to be dismissed.

9. The 7th

respondent, the Chairman of the 6th

respondent Municipality has filed a

separate reply. It is the case of the 7th

respondent Chairman that S.R.No. 278 which is

a Patta land belongs to the then Chairman of Municipality is situated close and within

CRZ area and in spite of the fact it is not known as to how the Municipality has

passed a resolution in choosing S.R.No. 278 and the site selection was to favour the

then Chairman. S.R.No.392/5 which was once accepted as suitable site was rejected

by the 6th

respondent Municipality for no reason. Subsequently, in respect of another

land in S.R.No. 42/1 Kayalpattinam South village- Burial Poramboke land and the

said request was also turned down.

10. It is stated by the7th

respondent that the Superintending Engineer of Commissionerate

of Municipal Administration (CMA) has already opined that the proposed site is not

suitable for setting up of Biomethanation Plant as it is situated close to the sea and

lacking all facilities. It is stated by the 7th

respondent that by brushing aside the

environmental issues contract has been awarded to the 10th

respondent which was

suppressed by the 6th

respondent Municipality while seeking approval from the

Council. The 6th

respondent has chosen to give tender in favour of 10th

respondent on

ground of lowest bidding and the same is against objection raised regarding the

setting up of Biomethanation Plant in S.R.No. 278. The proposal to setup the plant at

S.R.No. 278, in spite of the fact that it is no development zone, according to the 7th

respondent is only to promote real estate. It is stated by the 7th respondent that he has

written a letter to Chief Secretary to Government on 27-11-2014 that 278/1 is not

suitable for Biomethanation Plant and there are other lands available. Therefore, the

8th

respondent has rightly returned the application filed by the 6th

respondent for

authorisation on 12-01-2015 and the said application has been resubmitted

unauthorisedly. It is stated that the conduct of the 6th

respondent in not obtaining


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necessary permission from Coastal Zone Regulatory Authority makes the project

illegal and opposed to CRZ Notification, 2011 apart from the fact that the proposed

project site is eco sensitive. The 7th

respondent has stated that there is no approach

road and therefore the project should not be permitted. It is also stated that the entire

area is classified as water logged zone and therefore the subdivision made by the 6th

respondent is not going to change the zonal character. It is further stated that S.R.No.

278/1 and 278/1B are close to sea and estuary and the same are not suitable for setting

up of Biomethanation Plant or Compost Yard as per the Ready Reckoner issued by

the Government of Tamil Nadu on municipal solid waste management for urban local

bodies in 2008 and an environment impact assessment has to be done mandatorily in

respect of the project as the project is covered under EIA Notification. It is stated that

the 8th

respondent who has originally refused to give permission under MSW Rules

and consent under Water and Air Acts has changed its stand and granted consent

under Water and Air Acts simply because the original area was subdivided. It is

stated that the authorisation granted on 25- 05-2015 deals only with landfill and not

Biomethanation Plant and the Authorisation itself is without application of mind and

should be treated as non est . The non application is clear on the face of record as one

of the conditions in the Authorisation refers to the Airport of Madurai and to file

annual report which has nothing to do with any project of the Municipality.

11. According to the 7th

respondent, the consent order under Water and Air Acts have lot

of infirmities since the same were passed based on fabricated records. Normally, in

the consent order general conditions would be followed by additional conditions

while in the consent given by the 8th

respondent it is vice versa which itself shows

that it is sham and liable to be rejected. It is stated that the official respondents are

bent upon clearing the way for project proponent ignoring the CRZ Notification and

provisions of MSW Rules. In as much as the consent order has failed to consider that

the proposed land (CRZ 1) area is close to mangrove forest, the Biomethanation Plant

as well as Compost Yard and the scheme are to be rejected.

12. The 8th

respondent, District Environment Engineer in his reply has stated that he has

inspected the site proposed by the 6th

respondent Unit in S.F.No. 278/1B for MSW

processing facility and Biomethanation Plant on 15-07-2015 in the presence of the


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Municipal Commissioner. It is stated that the Municipality has applied for

Authorisation of its Municipal Solid Waste Facility in S.F.No. 278/1 on 12-01-2015

in the total area of 25 acres which contains a water logged creek and originally the

application was returned on 12-01-2015. The Municipality again applied on 24-03-

2015 for the subdivided portion of 278/1B in the extent of 4.5 acres in the extreme

south west of the total extent in S.F.No. 278 and the S.F. No 278/1B is out of CRZ

Zone. It is also stated that the distance between the proposed site and creek is 121 m

and the distance from the HTL is 535 m as confirmed by the GPS survey conducted

by Anna University. Therefore, it is stated categorically by the 8

th

respondent that

S.No.278/1B is out of CRZ Zone and does not attract the CRZ Notification dated 06-

01-2011. In addition to the above said report the 8th

respondent has also filed a reply

and it is reiterated that the proposal was viewed from environmental aspects and out

of total 25 acres in S.F.No. 278, after subdivision S.F.No. 278/1B in an extent of 4.2

acres which is outside CRZ for which a 2nd

application was made for having

municipal solid waste management facility in 4.2 acres and Biomethanation Plant in

0. 3 acre. It is also stated that the said Survey Number is surrounded by vacant lands

and no habitation is situated nearby as the Kayalpattinam South village is 950 m from

the project site on the southern direction. The nearest creek is at a distance of 121m

and HTL is at a distance of 530 m as identified by the authorised agency approved by

the MoEF and CC, Government of India namely Anna University, Chennai. It is also

stated that there are no mangroves in the vicinity. The Municipal Commissioner has

given an undertaking that the approach road will be formed outside the CRZ area, on

the western side of project site. The 8th

respondent has given reason for return by

Municipality on 08-12- 2014 stating that the said application was for the total extent

of S.No.278 which contained water logged area and therefore it was returned with a

request to select alternate site and not rejected. Subsequently, on 24.03.2015, the

Municipality applied for authorisation in respect of the subdivided S.R.No 278/1B

having found the said area is an extent of 4.5 acres out of which 4.2 acres was

earmarked for establishing a MSW facility and 0.3 acre for Biomethanation power

plant, and as both the proposed sites are situated away from the CRZ zone, the Board

has given Authorisation as well as Consent.


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13. It is also stated by the Board that the present application filed by the 6th

respondent

Municipality for establishment of a MSW project facility for a single local body. It is

stated that entry 7 (i) of EIA Notification 2006 relates to common Municipal facility,

common for more than 1 local body in which event it is listed as B Category. Being a

single local body, the present proposal does not attract the provisions of EIA

Notification, 2006. The nearest creek namely water logged area is situated at a

distance of 121 m from the proposed S.F.No. No.278/ 1B and there are no water

bodies found in the GPS Survey by Anna University. In fact, the said survey indicated

that there are no mangroves. The proposed project is not an income based

developmental activitiy but to bring out better quality life in the community.

14. The 10th

respondent contractor in the reply has denied the contention raised by the

applicant as conjectures and surmises. The processing facility of the 6th

respondent

ensures that the solid waste collected around the vicinity is put to effective use for

production of biogas which helps in generation of electricity which is a form of

renewable energy to be used for the welfare of residents of the Municipality. Such

facilities are prevalent in various local bodies in the urban and rural areas. It is for

proper handling of waste collection and utilisation for generation of energy, in which

State of Tamil Nadu is a pioneer in implementation of the such projects. It is stated

that the 10th

respondent has been a successful tenderer by following procedure

prescribed by law and in a transparent manner. Pursuant to the work order issued,

construction commenced in the early part of 2015 and the identification was done to

ensure that the site duly complied with CRZ Notification and is situated far away

from the river bed of Tamarabharani river. According to 10th

respondent, this

application is filed without verifying the factual circumstances. The plant is proposed

only in 278/1B and not in S.No.278/1 and therefore the application is liable to be

rejected summarily. The 10th respondent has reiterated all the averments made by the

6th

and 8th

respondents and stated that it is the bonafide tenderer having been selected

in a transparent manner and the intention of applicant is only to stall the project which

has been undertaken by 6th

respondent and substantial part of the work has been

completed and because of the conduct of applicants the public money should not be

allowed to be wasted.


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15. Mr. T. Mohan, learned Counsel appearing for the applicants has taken pains to

explain the term “ Common Municipal Solid Waste Facility” contemplated under

item 7 (i) of the schedule to the EIA Notification, 2006 stating that it means Common

Land filling Yard and Biomethanation Plant. According to him, the Compositing

Yard and Biomethanation Plant are components of a single solid waste management

facility proposed by the 6th

respondent and they are not separate entities and therefore

mere non mentioning of Biomethanation Plant does not mean that it does not require

EC. It is also his submission that by the 6th

respondent Municipality, separately

applying for Authorisation and Consent to Establish for treatment facility has

committed breach of Rule 4 (ii) MSW Rules, which enables an application in Form 1

for grant of Authorisation. The proposed facility includes landfill and according to

him the project as a whole is a waste processing and disposal facility requiring

authorisation and therefore there is no separate authorisation to be obtained for

composting yard. The conduct of the 6th

respondent in applying separately to the

Board for Biomethanation Plant and Authorisation for composting yard is misreading

of Rule 3(iv) and (vi) of MSW Rules and therefore the authorisation as well as

consent stated to have been obtained by the 6th

respondent is not valid. It is his

submission that the statute is to be read, keeping in mind the intention of its makers

and if more than one meaning is possible, the Court has to interpret based on the true

intention of the legislature. He has also relied up on the Judgement in Sur ji t Singh v.

Union of India , and Sarajul Sunni B v. Union of India to substantiate his

contention. This has also been followed by the National Green Tribunal in respect of

the Sewage Treatment Plant under item 7(h) and 7(i) of the schedule to EIA

Notification in the case of Kehar Sigh v. State of H aryana . The liberal interpretation

of the provisions especially in respect of the welfare legislation has been reiterated by

the National Green Tribunal in Haat Supreme Wastech Pvt L td and Others v. State

of Haryana and ors . Therefore, according to the learned Council, the MSW facility

proposed by the 6th

respondent requires prior EC under the EIA Notification 2006.

According to the learned Counsel, the Common Municipal Solid Waste Management

Facility stated in 7(i) of Schedule to EIA Notification refers to the need of city or a

region and it need not be confused with either centralised or integrated scheme which


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may relate to more than one town or city. He has also relied upon an order passed by

the NGT in I nverti s Uni versity v. Union of I ndia and Ors ., dated 18th

July 2013 by

the Principal Bench and therefore according to the learned Counsel, the 6th

respondent

Municipality should have obtained prior EC under the EIA Notification 2006. As the

said EC has not been obtained, the project has no legs to stand.

16. Mr.Vishnu, learned Counsel appearing for the 7th

respondent has referred to the MSW

Rules particularly with reference to schedule 4, which speaks about the standards for

Composting, Treated leachates and Incineration. The technology in that regard is to

be duly approved by the Central Pollution Control Board (CPCB). In this case, since

such approval is not available, the scheme is not valid in accordance with law. Both

Mr.T.Mohan as well as Mr. Vishnu have also contended that there is total non

application of mind in the orders passed by the official respondents and it is clear that

the District Environmental Engineer is not designated authority.

17. Per contra, it is the contention of Mr. Abdul Saleem, the learned Special Government

Pleader appearing for the 6th respondent and Mrs. Yasmeen Ali appearing for 8 th

respondent and Mr. Naveen Kumar Murthi appearing for the10th respondent that the

word “common” used in the EIA Notification, 2006 has to be construed in

accordance with the provisions of the MSW Rules, 2000 and Rule 4 of the MSW

Rules, 2000 nowhere uses the word common but it only states about the grant of

authorisation for setting up of waste processing and disposal facility including

landfills which according to them can be applied separately and only in case where

for all the facilities in combination if application is made it should be treated as a

Common Waste Management Scheme. Otherwise, their submission is that the word

common means more than one Municipalities and if a single Municipality proposes a

scheme, such Municipality has to approach under the MSW Rules, 2000 to the State

Board and no prior EC is required. According to the learned Counsel, as the valid

Authorisation as well as the Consent under Water and Air Acts are available as on

date, it cannot be said that the proposed scheme by the 6th

respondent cannot be

carried on. It is their submission that the orders of the National Green Tribunal relied

upon by the learned Counsel for the applicants are not applicable to the facts and

circumstances of the instant case. It is their case that neither the applicant nor the 7th


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respondent have raised an issue that proposed technology to be followed by the 6th

respondent for dealing with municipal solid waste is not in accordance with law. They

have also reiterated that the application has been filed only with a political motive of

thwarting a public project which cannot be allowed.

18. We have heard learned Counsel appearing for the applicant as well as respondents

elaborately, referred to the pleadings, documents filed by the parties apart from the

Judgements of Hon’ble Supreme Court as well as National Green Tribunal and have

carefully considered the issues involved in this case and accordingly we frame the

following issues to be answered in this case.

1. Whether the scheme of setting up of the Municipal Solid Waste Processing

Facility proposed by the 6th

respondent in S.R.No. 278/1B requires a valid

prior EC under EIA Notification, 2006 in addition to the Authorisation under

the MSW Rules, 2000 and the Consent to Establish under the Water Act, 1974

and Air Act 1981?

2.

Whether the 6th respondent in framing the proposal for the Municipal Solid

Waste Processing Facility has violated the provisions of the MSW Rules,

2000, Water Act, 1974 and Air Act 1981?

3. Whether the project of the 6th

respondent should be allowed to be carried on

or not?

As all the issues are interconnected we have decided to answer all the issues together.

19. From the documents filed and pleadings made it is clear that originally the 6th

respondent Municipality has applied on 08-12-2014 for Authorisation for the

proposed Municipal Solid Waste Facility at S.F.No.278/1 at Kayalpattinam village.

The extent of the entire S.F.No. 278/1 is admittedly 25 acres and it contained a water

logged portion also. As the entire extent applied for originally comes within the

Revised Coastal Zone Regulation, the 8th

respondent has returned the said application

on 12-01-2015 with the following direction:

“While processing the application filed by you for the Authorisation of

Composting Yard proposed at R.S.No.278/1 of Kayalpattinam, South

village, it was found that the site falls under water logged area as per the


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revised – CRZ map sheet No.27 containing Srivaikuntam Taluk, part of

Thoothukudi Taluk and Tiruchendur Taluk of Thoothukudi District.

Hence, the application filed by you for the issue of authorisation for the

composting yard at the proposed site cannot be processed further and

application is retuned herewith and requested to select alternate site for

considering the issue of authorisation to the composting yard”.

20. However, the 6th

respondent Municipality has issued work order on 15-12-2014 to the

10th

respondent. Challenging the said issuance of work order dated 15-12-2014 and

the resolution of Municipality dated 11-10-2013 and 25-11-2014 and also directing

the respondents to select alternate site for setting up of bio-methanation plant as per

the proceedings of the Board dated 12-01-2015 the petitioners herein who were the

2nd

and 3rd

petitioners in W.P.No 7730 of 2015 have moved the above writ petition

before the Hon’ble High Court of Judicature at Madras in its Madurai Bench which

came to be dismissed by a Division Bench on 13-05-2015 as not maintainable,

however, stating that the dismissal will not prevent the petitioners from approaching

the National Green Tribunal. The relevant portions of the Hon’ble High Court order is

as follows:

“In our view, no such permission is required from this Court, since the

issue raised by the petitioners falls wholly within the jurisdiction of the

National Green Tribunal. Accordingly, this writ petition stands rejected as

not maintainable. However, this will not prevent the petitioners from

approaching the National Green Tribunal for necessary relief. It is made

clear that though the respondent Municipality has filed a counter affidavit,

this Court has not adjudicated the correctness of the stand taken therein

nor other submissions made by the other learned Counsels and the issues

are left open. No costs. Consequently connected miscellaneous petitions

are closed ”.

21. It is thereafter the applicants have filed the present application on 14-05-2015

praying for the following relief:


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A. “To issue a permanent injunction restraining the respondents from

establishing/setting up any Composting Yard or Biomethanation Plant

or any Solid Waste Landfill or procuring facility at S.R.No 278/1,

Kayalpattinam village or in any site within the CRZ area and

mandatory clearance under the EIA Notification, 2006, Authorisation

under the MSW Rules, 2000, Consent to Establish under the Water

(Prevention and Control of Pollution) Act, 1974, and the Air

(Prevention and Control of Pollution) Act, 1981.

B.

Direct the 1

st

and 11

th

respondents to initiate appropriate action against

the 6th

and 7th

respondents for violation of the EIA Notification, 2006.

C. Direct the 1st, 8

th and 11

th respondents to initiate appropriate action

against the 6th

and 7th

respondents for violation of the MSW Rules,

2000, the Water Act, 1974 and the Air Act, 1981.

D. To restore the site to its status quo and by demolishing all structural

constructions.

E. And pass such further or other orders, including costs of the present

application as this Hon’ble Court may deem fit and proper in the

circumstances of the case thus render justice”.

22. The fact remains that in the meantime, based on the return of their application dated

08-12-2014 by the Board in its letter dated 12-01-2015, the Municipality has again

applied on 24-03-2015 requesting for issuance of No Objection Certificate to the

Municipal Solid Waste Facility at S.R.No. 278/1B in extent of 4.2 acres in

Kayalpattinam South village and applied for Biomethanation Power Plant in 0.3 acre

in the said S.R.No. 278/1B. It is stated that after the application was returned by the

Board on 12-01-2015 with a direction to make a fresh application on the alternate

site, S.R.No. 278/1 which was having a total extent of 25 acres was subdivided with

S.R.No. 278/1B which is situated on the south west corner of S.R. No. 278/1. It is in

respect of the S.R.No 278/1B that the 6th

respondent has made a fresh application to

the 8th

respondent Board for Authorisation under the MSW Rules, 2000 in respect of

the Municipal Solid Waste Facility in 4.2 acres and Consent to Establish for the

Biomethanation Power Plant in 0.3 acre. The Board in the order dated 25-05-2015 has


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issued Authorisation valid till 31-01-2016 subject to the final outcome of the present

case and Consent to Establish on 24-06- 2015 both under Water Act, 1974 and Air

Act, 1981.

23. However, the applicants have chosen to challenge the proposed establishment of the

Composting Yard or Biomethanation Plant or Solid Waste Land Fill by the 6th

respondent in S.R.No.278/1 on the ground that it is in violation of CRZ Notification

and that it requires mandatory EC under the EIA Notification, 2006 and Authorisation

under MSW Rules, 2000 and Consent to Establish under the Water and Air Acts. The

applicants have not chosen to question the proposed Municipal Solid Waste

Processing Facility by the 6th

respondent in S.R.No.278/1B in its revised application

dated 24-03-2015 in respect of which Authorisation under the MSW Rules, 2000 and

Consent to Establish under the Water and Air Acts were granted by the Board.

Technically the application as filed is not maintainable. However, since in the

meantime the entire facts have been brought to the notice of this Tribunal by both the

parties, we have decided to proceed with the case assuming that the case relates to

278/1B without dismissing the application on the above said technical ground.

24. It is true that the applicants have not chosen to challenge the Authorisation given to

the 6th

respondent Municipality under the MSW Rules, 2000 and Consent to Establish

granted to the 6th

respondent by the Board under both the Water and Air Acts.

However, the applicants have chosen to state that the proposed site falls within the

CRZ area and therefore the proposed activity is prohibited and that in any event since

the 6th

respondent has made application for the Common Municipal Solid Waste

Facility, it requires prior EC which ought to have been obtained by the 6th

respondent

from SEIAA before approaching the Board for Authorisation as well as Consent to

Establish. Therefore, in this case the points to be decided are as to whether the

Authorisation and Consent to Establish granted to the 6th respondent in respect of

S.R.No.278/1B is valid on the ground that it is prohibited under the CRZ Notification,

2011 and it requires prior EC under EIA Notification, 2006.

25. In so far as it relates the question as to whether the proposed Municipal Solid Waste

Facility and Biomethanation Power Plant at S.R.No.278/1B in extent of 4.2 acres and

0.3 acre, respectively come within the prohibitive distance prescribed by the Coastal


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Zone Regulation 2011, the Institute of Remote Sensing, Anna University which is one

of the recognized agencies authorised by the MoEF and CC as per the CRZ

Notification, 2011 has made a GPS Survey in May 2015 for HTL/LTL/CRZ

Zonation for the proposed Municipal Solid Waste Facility and Compost Yard in

S.R.No. 278/1B, Kayalpattinam South village.

26. According to the CRZ Notification, it applies to the land from the HTL up to 500m in

the landward side along the sea front and to the land area between HTL to 100m or

width of the creek whichever is less on the landward side along the tidal influenced

water bodies that are connected to the sea and the distance up to which development

along such tidal influenced water bodies is to be regulated shall be governed by the

distance up to which the tidal effects are experienced and area between the low tide

and high tide level. The CRZ Notification dated 06-01-2011 divides 4 types of

categories in coastal regulation zone, category 1 called CRZ-1 which is an

Ecologically Sensitive Area such as national parks, marine parks, sanctuaries, reserve

forests, wild life habitats, mangroves, corals and coral reefs, areas close to breeding

and spawning grounds of fish and other marine life, areas of outstanding natural

beauty/historically/heritage areas, areas rich in genetic diversity, etc., Category-2

(CRZ -II) where the area has already been developed up to close to shore line where

development is within the municipal limits or other legally designated urban area

which is already substantially built up areas and which has been provided with

drainage and approach roads and other infrastructural facilities, like water supply and

sewerage mains, Category -3 (CRZ-III) the areas which are relatively undisturbed and

which do not belong either to Category 1 or 2 developed or undeveloped which are

not substantially built up and Category 4 (CRZ-IV) the water area from the low tide

line to 12 nautical miles on the sea ward side and the water area of the tidal

influenced water body from the mouth of the water body at sea up to influenced site

which is measured. Under the modern mapping equipments like GPS, the accurate

geographical locations, remote sensing images indicating the physical and associate

zonal information and sketches etc., are able to be obtained. Based on the request of

the Commissioner, Kayalpattinam Municipality, namely the 6th

respondent, the

Institute of Remote Sensing, Anna University has made a GPS Survey and submitted


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its report. In the said report it is clearly stated that the project site is located in South

Kayalpattinam village and on the western side of Bay of Bengal coastal line and small

indented water body is connected to the sea and the mangrove vegetation are not seen

in the vicinity. The Institute has undertaken to conduct survey and filed survey report

on 22-04-2015 and the high tidal level for the last 19 years nearer to the site. The

conclusions arrived at by the Institute of Anna University are as follows:

“1. The property carrying Survey No. 278/1B in Kayalpattinam South

village is out of 500 m set back line of HTL from the nearest east ward

coastline of Bay of Bengal.

2. The property carrying survey No.278/1B in Kayalpattinam South

village is out of the 100 m set back line of HTL from nearest eastward

creek (tidally influenced backwater)

3. The site does not fall within CRZ III zone as per CRZ guideline

2011 Notification

4. There are no mangroves in the vicinity. The property is not in

mudflat, there are no sand dunes within the site”.

27. Therefore, the accredited agency, the Institute of Remote Sensing, Anna University

has also confirmed to the stand taken by the 6th

and 8th

respondents in so far as it

relates to the project site which is beyond 500 m setback line of HTL and out of 100

m setback line of nearest east ward creek and there are no mangrove, mud flat and

sand dunes within the site. According to the Board, the nearest creek is at a distance

of 120 m from the boundary of site and the HTL of sea is at a distance of 535 m.

Therefore, it is clear from the categoric finding of the accredited agency of MoEF and

CC, namely, Institute of Remote Sensing, Anna University that the project site is not

affected by the CRZ Notification, 2011.

28. This leaves us to the next question which is on the requirement of prior EC under the

EIA Notification, 2006. By virtue of the powers conferred under Section 3(2) (v) of

the Environment (Protection Act) Act, 1986 read with rule 5(3) (d) of EP Rules, 1986

and in supersession of the prior Notification 27-1-1994, the Central Government has


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issued EC regulation 2006 (EIA Notification, 2006) operative from 14th

September

2006. Regulation 2 of EIA Notification, 2006 contemplates prior EC from the

concerned Regulatory Authority either Central Government in respect of Category

‘A’ project or SEIAA in respect of Category ‘B’ projects which relates to

“(i). All new projects or activities listed in the Schedule to this notification;

(ii). Expansion and modernization of existing projects or activities listed in the

Schedule to this notification with addition of capacity beyond the limits specified

for the concerned sector, that is, projects or activities which cross the threshold

limits given in the schedule, after expansion or modernization;

(iii). Any change in product - mix in an existing manufacturing unit included in

Schedule beyond the specified range”.

The projects or activities require prior EC are explained in the schedule attached to EIA

Notification, 2006. For our consideration to decide the issue involved in this case item

No. 7(i) of the schedule which relates to Common Municipal Solid Waste Management

Facility (CMSWF) is relevant. The said item shows in the schedule that the same is

covered under the B Category in all projects. The note relating to general condition

incorporated with effect from 01-12-2009 in the schedule states as follows:

“General Condition (GC):

Any project or activity specified in Category ‘B’ will be treated as Category

A, if located in whole or in part within 10 km from the boundary of: (i)

Protected Areas notified under the Wild Life (Protection) Act, 1972, (ii)

Critically Polluted areas as notified by the Central Pollution Control Board

from time to time, (iii) Notified Eco-sensitive areas, (iv) inter-State

boundaries and international boundaries”.

29. By virtue of the note appended to the schedule to EIA Notification, 2006 and contents

therein there is no difficulty for us to conclude that in respect of the project of the 6th

respondent to establish Municipal Solid Waste Processing Facility no one of the said

note is applicable. However, if on the construction of the EIA Notification, 2006, this

Tribunal comes to a conclusion that the said facility requires prior EC, such clearance

from SEIAA this being a ‘B’ category project is a mandatory requirement without

which the said project cannot be permitted to go ahead under the MSW Rules, 2000

and the Consent to Establish under the Water and Air Acts. Therefore, the precise


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question to be answered is the meaning of “Common Municipal Solid Waste

Management Facility” and word “common” which is being agitated by both the sides

to suit their convenience based on the facts of the case. While “Common” according

to Mr.T.Mohan means and includes all the integral parts of the Municipal Solid Waste

Management like processing, segregation etc., as each part cannot have an

independent existence and therefore all the integral activities connected with the

Municipal Solid Waste Management put together MSWMF means “common” and it

requires prior EC from the SEIAA. On the other hand, it is the case of Mr.Abdul

Saleem, learned Special Government Pleader and Mr. Naveen Kumar Murthi, that the

Municipal Solid Waste Management itself has various independent components and

only if all the components put together are framed as single scheme, it can be

Common Municipal Solid Waste Management.

30. The term either Common Municipal Solid Waste Management Facility or the

Municipal Solid Waste Management are not defined either under EIA Notification,

2006 or under the Parent Act namely EP Act, 1986. Therefore, we have to necessarily

go to the MSW Rules 2000, the statutory rules framed by the Government of India by

exercising its powers under Sections.3, 5 and 25 of the EP Act, 1986. Under the said

statutory rules, Rule 3(xiv) define Municipal authority as:

"municipal authority" means Municipal Corporation, Municipality, Nagar

Palika, Nagar Nigam, Nagar Panchayat, Municipal Council including

notified area committee (NAC) or any other local body constituted under the

relevant statutes and, where the management and handling of municipal

solid waste is entrusted to such agency;

The said statutory rules also define Municipal Solid Waste as follows:

"municipal solid waste" includes commercial and residential wastes

generated in a municipal or notified areas in either solid or semi-solid form

excluding industrial hazardous wastes but including treated bio-medical

wastes”

31. There are few other definitions under Rule 3 which are relevant and are as follows:

Rule 3(xvi)


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"operator of a facility" means a person who owns or operates a

facility for collection, segregation, storage, transportation, processing

and disposal of municipal solid wastes and also includes any other

agency appointed as such by the municipal authority for the

management and handling of municipal solid wastes in the respective

areas;

A reading of the above said sub rule suggests that there can be operator of a facility

separately in respect of collection, segregation, storage, transportation, processing and

disposal of Municipal solid waste. It means that if there are separate operators of each of

the facility, each of the operator shall obtain consent from the Board by way of

authorisation as defined under rule 3(2) which is as follows;

"authorization" means the consent given by the Board or Committee

to the "operator of a facility"

“Processing” defined under rule 3(xviii) is as follows:

“"processing" means the process by which solid wastes are

transformed into new or recycled products”

“Segregation” under Rule 3(xxi) is as follows:

“"segregation" means to separate the municipal solid wastes into the

groups of organic, inorganic, recyclables and hazardous wastes”

“Storage”, as defined under rule 3(xxiii) is as follows:

“"storage" means the temporary containment of municipal solid

wastes in a manner so as to prevent littering, attraction to vectors,

stray animals and excessive foul odour’

“Transportation” under rule 3(xxiv) is defined as follows;

“"transportation" means conveyance of municipal solid wastes from

place to place hygienically through specially designed transport

system so as to prevent foul odour, littering, unsightly conditions and

accessibility to vectors”

“Dis posal”, as defined under rule 3 (viii) is as follows:


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“"disposal" means final disposal of municipal solid wastes in terms of

the specified measures to prevent contamination of ground-water,

surface water and ambient air quality.”

32.

The processing includes recycle of the product and recycling itself is defined

separately under rule 3 (xix) is as follows;

“"recycling" means the process of transforming segregated solid wastes

into raw materials for producing new products, which may or may not be

similar to the original products.”

That apart, Rule 3(ix) defines “land filling” which is as follows;

“"landfilling" means disposal of residual solid wastes on land in a

facility designed with protective measures against pollution of ground

water, surface water and air fugitive dust, wind-blown litter, bad

odour, fire hazard, bird menace, pests or rodents, greenhouse gas

emissions, slope instability and erosion.”

The word “Composting” is defined under Rule 3(vi) as follows;

“"composting" means a controlled process involving microbial

decomposition of organic matter.”

33. Rule 4 imposes a responsibility on the respondent, Municipal Authority as defined

under 3(xiv) extracted above, individually and independently to implement the

provision of the rules and for creating infrastructure development for collection,

storage, segregation, transportation, processing and disposal of municipal solid waste

within the territorial area of the Municipality. Therefore, it is the responsibility of the

municipal authority to implement the provisions of the rules. Rule 4 reads as follows;

“4. Responsibility of municipal authority:-

1. Every municipal authority shall, within the territorial area of the

municipality, be responsible for the implementation of the provisions of

these rules, and for any infrastructure development for collection, storage,

segregation, transportation, processing and disposal of municipal solid

wastes.

2. The municipal authority or an operator of a facility shall make an

application in Form-I, for grant of authorization for setting up waste


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processing and disposal facility including landfills from the State Board or

the Committee in order to comply with the implementation programme

laid down in Schedule I.

3. The municipal authority shall comply with these rules as per the

implementation schedule laid down in Schedule I.

(4) The municipal authority shall furnish its annual report in Form-II,-

a. to the Secretary-in charge of the Department of Urban Development of

the concerned State or as the case may be of the Union territory, in

case of a metropolitan city; or

b. to the District Magistrate or the Deputy Commissioner concerned in

case of all other towns and cities,

with a copy to the State Board or the Committee on or before the 30th

day of June

every year ”.

34. Once the municipal authority applies to the Board, it is the responsibility of the Board

to issue authorisation and effective monitoring under rule 6 which is as follows:

“6. Responsibility of the Central Pollution Control Board and the

State Board or the Committees.

1. The State Board or the Committee shall monitor the compliance of

the standards regarding ground water, ambient air, leachate quality

and the compost quality including incineration standards as

specified under Schedules II, III and IV.

2. The State Board or the Committee, after the receipt of application

from the municipal authority or the operator of a facility in Form

I, for grant of authorization for setting up waste processing and

disposal facility including landfills, shall examine the proposal

taking into consideration the views of other agencies like the State

Urban Development Department, the Town and Country Planning

Department, Air Port or Air Base Authority, the Ground Water

Board or any such other agency prior to issuing the authorization.

3.

The State Board or the Committee shall issue the authorization

in Form-III to the municipal authority or an operator of a facility

within forty-five days stipulating compliance criteria and standards

as specified in Schedules II, III and IV including such other

conditions, as may be necessary.

4. The authorization shall be valid for a given period and after the

validity is over, a fresh authorization shall be required.


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5. The Central Pollution Control Board shall co-ordinate with the State

Boards and the Committees with particular reference to

implementation and review of standards and guidelines and

compilation of monitoring data”.

35. Therefore, by virtue of Rule 4(1) of MSW Rules while it is the responsibility of each

municipal authority, the said municipal authority itself can nominate operators for

each facility like collection, segregation etc., while the responsibility for providing

infrastructure for the said operation lies only with the municipal authority. Rule 4(2)

authorises either the municipal authority or an operator to apply for authorisation in

Form 1 for setting up of waste processing and disposal facility including landfills

from the State Board. Again schedule 2 of MSW Rules which discusses about the

management of municipal solid waste prescribes certain parameters of MSW,

segregation of municipal solid wastes, storage of municipal solid wastes,

transportation, processing of municipal solid wastes and disposal of the same.

Schedule 2 is as follows;

Schedule -II

[see rules 6(1) and (3), 7(1)]

Management of Municipal Solid Wastes

S.No. Parameters Compliance criteria

1. Collection of

municipal solid

wastes

1. Littering of municipal solid waste shall be prohibited in

cities, towns and in urban areas notified by the State

Governments. To prohibit littering and facilitate compliance,

the following steps shall be taken by the municipal authority,

namely :-

i. Organising house-to-house collection of municipal solid

wastes through any of the methods, like community bincollection (central bin), house-to-house collection,

collection on regular pre-informed timings and

scheduling by using bell ringing of musical vehicle

(without exceeding permissible noise levels);

ii. Devising collection of waste from slums and squatter

areas or localities including hotels, restaurants, office

complexes and commercial areas;


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iii. Wastes from slaughter houses, meat and fish markets,

fruits and vegetable markets, which are biodegradable

in nature, shall be managed to make use of such wastes;

iv.

Bio-medical wastes and industrial wastes shall not bemixed with municipal solid wastes and such wastes

shall follow the rules separately specified for the

purpose;

v. Collected waste from residential and other areas shall

be transferred to community bin by hand-driven

containerised carts or other small vehicles;

vi. Horticlutural and construction or demolition wastes or

debris shall be separately collected and disposed off

following proper norms. Similarly, wastes generated at

dairies shall be regulated in accordance with the State

laws;

vii. Waste (garbage, dry leaves) shall not be burnt;

viii. Stray animals shall not be allowed to move around

waste storage facilities or at any other place in the city

or town and shall be managed in accordance with the

State laws.

2. The municipal authority shall notify waste collection

schedule and the likely method to be adopted for public

benefit in a city or town.

3. It shall be the responsibility of generator of wastes to avoid

littering and ensure delivery of wastes in accordance with the

collection and segregation system to be notified by the

municipal authority as per para 1(2) of this Schedule.

2. Segregation of

municipal solid

wastes

In order to encourage the citizens, municipal authority shall

organise awareness programmes for segregation of wastes and

shall promote recycling or reuse of segregated materials.

The municipal authority shall undertake phased programmeto ensure community participation in waste segregation. For

this purpose, regular meetings at quarterly intervals shall be

arranged by the municipal authorities with representatives of

local resident welfare associations and non-governmental

organizations.

3. Storage of

municipal solid

Municipal authorities shall establish and maintain storage

facilities in such a manner as they do not create unhygienic


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wastes and insanitary conditions around it. Following criteria shall be

taken into account while establishing and maintaining storage

facilities, namely :-

i. Storage facilities shall be created and established by

taking into account quantities of waste generation in a

given area and the population densities. A storage

facility shall be so placed that it is accessible to users;

ii. Storage facilities to be set up by municipal authorities

or any other agency shall be so designed that wastes

stored are not exposed to open atmosphere and shall be

aesthetically acceptable and user-friendly;

iii. Storage facilities or bins shall have easy to operate

design for handling, transfer and transportation of

waste. Bins for storage of bio-degradable wastes shall

be painted green, those for storage of recyclable wastes

shall be printed white and those for storage of other

wastes shall be printed black;

iv.

Manual handling of waste shall be prohibited. If

unavoidable due to constraints, manual handling shall

be carried out under proper precaution with due care

for safety of workers.

4. Transportation

of municipal

solid wastes

Vehicles used for transportation of wastes shall be covered.

Waste should not be visible to public, nor exposed to open

environment preventing their scattering. The following

criteria shall be met, namely:-

i. The storage facilities set up by municipal authorities

shall be daily attended for clearing of wastes. The bins

or containers wherever placed shall be cleaned before

they start overflowing;

ii. Transportation vehicles shall be so designed that

multiple handling of wastes, prior to final disposal, is

avoided.

5. Processing of

municipal solid

wastes

Municipal authorities shall adopt suitable technology or

combination of such technologies to make use of wastes so as

to minimize burden on landfill. Following criteria shall be

adopted, namely:-


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(i) The biodegradable wastes shall be processed by

composting, vermin composting, anaerobic digestion or

any other appropriate biological processing for

stabilization of wastes. It shall be ensured that compostor any other end product shall comply with standards

as specified in Schedule-IV;

ii. Mixed waste containing recoverable resources shall

follow the route of recycling. Incineration with or

without energy recovery including pelletisation can also

be used for processing wastes in specific cases.

Municipal authority or the operator of a facility

wishing to use other state-of-the-art technologies shall

approach the Central Pollution Control Board to get

the standards laid down before applying for grant of

authorisation.

6. Disposal of

municipal solidwastes

Land filling shall be restricted to non-biodegradable, inert

waste and other waste that are not suitable either for recyclingor for biological processing. Land filling shall also be carried

out for residues of waste processing facilities as well as pre-

processing rejects from waste processing facilities. Land filling

of mixed waste shall be avoided unless the same is found

unsuitable for waste processing. Under unavoidable

circumstances or till installation of alternate facilities, land-

filling shall be done following proper norms. Landfill sites

shall meet the specifications as given in Schedule III.

36. Therefore, Schedule II is not only exhaustive but also gives clear directions in respect

of municipal solid wastes to be followed by the Municipal Authority or Operator of a

facility who have been issued with Authorisation by the Board. Schedule 3 and 4 of

the Rules issue elaborate guideline regarding specification of land fill sites, standard

for Composting, treated leachates and incineration. Therefore, a combined reading of

the entire statutory rules make it abundantly clear that there can be separate person

nominated by the municipal authority for each of the Municipal Solid Waste Facility

like collection, segregation etc. The Municipal Authority itself can be operator of all

facilities combined together. In such circumstances, only we are of the considered

view that the word MSWMF contemplated under item 7(i) of EIA Notification will

be called as Common MSWMF. In our considered view this can only be the


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harmonious and natural construction of the term Common MSWMF. Construing

otherwise stating that all the components of operation of MSW as one integral unit

will only result in misconstruction of MSW Rules, 2000. It is true that common MSW

facility may also include cases of more than one Municipalities joining in a

centralised fashion which may also be referred under item 7(i). By such construction

no destructive meaning can be imported as apprehended by the learned Counsel for

the applicants. In fact, we had occasion to decide on unauthorised dumping of the

solid waste generated by a Municipality in its territory into the territory of another

Panchyat by purchasing certain lands, in Application No. 247 of 2014 in our order

dated 30th

September 2015 wherein we have held that the constitutional provision

regarding the establishment of Municipality and Panchayat imposes a Constitutional

mandate that every Panchayat and Municipality has its individual entity in respect of

their territorial area. The above said entry 7(i) which is certainly a social welfare

legislation has to be construed with a purposive interpretation taking into

consideration the provisions of the statutory rules framed by the Government of India

in the form of MSW Rules, 2000. In fact, the purposive way of interpretation was

explained by the NGT in Appeal No. 5 of 2014 M/s. Ardent Steel Ltd v. MoEF and

Ors. in the order dated 27th

May 2014. The observations made in Paragraph 13 of said

Judgement gives a precise explanation of the legal position as follows:

“13. First and foremost, we must examine as to how an Entry in a social

welfare legislation like the Act of 1986 should be interpreted and what

principles of interpretation are to be applied while dealing with such an

Entry. We may at this stage refer to a recent judgment of the Tribunal of

"Haat Supreme Wastech Pvt. Ltd. v State of Haryana, 2013 All (I) NGT

Reporter (2) (DELHI) 140", where the Bench of the Tribunal was concerned

with interpreting another Entry of the same Schedule i.e. Entry 7(d) of the

Schedule to the Regulations of 2006-"Common hazardous waste treatment,

storage and disposal facility." It will be useful to notice the following

discussion from the said judgment:

"The Act of 1986 and the rules afore-referred, in particular Rules of 1998, are

socio-welfare legislations as they have triple objects: firstly, they are welfare

legislations in as much as they mandate the State to provide clean and decent

environment. Secondly, they provide for remedies which could be invoked by

different stakeholders and even by any aggrieved person and thirdly, the

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consequences of violating the environmental provisions including punitive

actions. Thus, while interpreting the relevant provisions, these concepts have

to be appropriately considered by the Tribunal. The object of these provisions

being wholesome environment, the rule of reasonable constructions in

conjunction with the liberal construction would have to be applied. While

dealing with a social welfare legislation, the provisions and the words therein

are to be given a liberal and expanded meaning. Of course, liberal

construction does not mean that the words shall be forced out of their natural

meaning but they should receive a fair and reasonable interpretation so as to

attain the object for which the instrument is designed and the purpose for

which it is applied. Both the object and purpose of an Act in relation to its

application are thus, relevant considerations for interpretation. The Courts

have also permitted departure from the rule of literal construction so as to

avoid the statute becoming meaningless or futile. In the case of Surjit Singh v.

Union of India (1991) 2 SCC 87 and Sarajul Sunni Board v. Union of India

AIR 1959 SC 198, the Supreme Court has also held that it is not allowable to

read words in a statute which are not there, but where the alternative allows,

either by supplying words which appear to have been accidentally omitted or

by adopting a construction which deprives certain existing words of all

meaning, it is permissible to supply the words. It is also a settled cannon that

in case of a social or beneficial legislation, the Courts or Tribunals are to

adopt a liberal or purposive construction as opposed to the rule of literal

construction.

These well-known principles of interpretation have to be applied, but with

caution. Construction favorable to achieve the purpose of enactment but

without doing violence to the language is of paramount consideration. In the

case of Shivaji Dayanu Patil & Anr. v. Vatschala Uttam More( 1991) 3 SCR

26a, the Supreme Court while dealing with a beneficial provision of the Motor

Vehicles Act, 1939 held as under:

"It is thus evident that Section 92-A was in the nature of a beneficial

legislation enacted with a view to confer the benefit of expeditious payment of

a limited amount by way of compensation to the victims of an accident arising

out of the use of a motor vehicle on the basis of no fault liability. In the matter

of interpretation of a beneficial legislation the approach of the courts is to

adopt a construction which advances the beneficient purpose underlying the

enactment in preference to a construction which tends to defeat that purpose."

The doctrine of reasonable construction implies that the correct interpretation

is the one that best harmonizes the words with the object of the statute. Lord

Porter in Bhagwan Baksh Singh (Raja) v. Secretary of State, AIR 1940 Privy

Council 82, stated: "right construction of the Act can only be attained if its

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whole scope and object together with an analysis of its wording and the

circumstances in which it is enacted are taken into consideration." The

Tribunals will also keep in mind that the application of a given legislation to

new and unforeseen things and situations broadly falling within the statutory

provisions is within the interpretative jurisdiction of the courts. In the case of

Charan Lal Sahu v. Union of India, AIR 1990 SC 1480, the Hon'ble Supreme

Court while dealing with the provisions of the Bhopal Gas leak disaster and

directing the government to give interim relief to the victims as a measure in

articulate premise from the spirit of the Act, declared this approach to the

interpretation of the Act as constructive intuition which in the opinion of the

court was a permissible mode of viewing the acts of the Parliament.

Keeping in view the legislative intent, object of the Act and the Rules framed

there under and the purpose sought to be achieved, recourse to any of the

above doctrine would be appropriate. Certainly, it is the obligation of the

respective governments to prevent and control pollution on one hand and

provide clean environment to the public at large on the other. The industrial

development cannot be permitted to ignore environmental interests and

damage the ecology or ambient environmental quality irretrievably. The units

of plants which violate the prescribed standards and cause serious

pollution, are to be dealt with strictly in accordance with the prescribed penal

or other consequences which may even include the closure of a unit. The rules

primarily provide a regulatory regime that is required to be adhered to for the

purposes of permissive industrial activity. All these regulatory regimes

whether relating to municipal waste, hazardous waste or biomedical waste,

owe their allegiance to the substantive provisions and object of the Act of

1986. Reasonable construction is intended to provide a balance between the

industrial development and the environment. Principle of 'constructive

intuition' would also have its application to the provisions of the Act, the

Rules and particularly the Notification of 2006 in relation to dealing with the

entries provided in the Schedule. The liberal construction rule would help in

giving a purposeful meaning and interpretation to the provisions of the Act

and the Rules for attainment of the basic object, i.e. cleaner environment.

From the above discussion, it is clear that to an Entry of the Schedule of a

social welfare legislation, the principle of reasonable and/or liberal

construction should be adopted to ensure that the object and purpose of the

Act is undefeated by such interpretation. Most suitable interpretation would

be one which would further the cause of the Act and ensure prevention and

control of pollution rather than provide escape route to the industry from

taking anti-pollution measures and complying with the provisions of the Act”.


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37. From the above judgement and applying the same to the facts of the present case

taking note of the fact that the 6th

respondent has made application for authorisation

under MSW Rules, 2000 to establish Municipal Solid Waste Processing Facility in

the area of 4.2 ha in S.R.No. 278/1B and applied for Consent to Establish separately

for Biomethanation Plant in the remaining area of 0.3 acre, the same cannot be termed

as a CMSWMF within the purview of item 7(i) of MSW Rules. Therefore, we hold

that prior EC under the facts and circumstance of the case is not necessary to be

obtained and the 6th

respondent is entitled to proceed with the scheme.

38.

While parting with, we have to make mention about a fact that a public project like

this is attempted to be scuttled due to private dispute even among the municipal

members and its president and such activity ignoring the common interest of the

people is to be discouraged. The sustainable development is not for the purpose of

scuttling any of public projects but it must be balanced with the public interest of

course by following the best technology available in respect of the scheme with intent

to preserve environment. In any event the development for social benefit shall not be

curtailed. On an analysis of the facts of this case we have to mention that no issues of

great environmental importance have been raised by the applicants. In any event, as

correctly submitted by Mr.R.Vishnu learned Counsel appearing for the7th

respondent

that if the technology to be followed by the 6th

respondent in respect of project

requires approval by the Central Pollution Control Board, the same has to be

scrupulously followed by the parties by taking appropriate steps,

Accordingly the application fails and is dismissed.

No order as to cost.

Dated 25th

January 2016 Justice Dr. P. Jyothimani

Judicial Member

Chennai.

Prof. Dr. R. Nagendran

Expert Member

appeal no.100 of 2015 (sz) - national green tribunal - judgment

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