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Judgment
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.
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 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.
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 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.
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 II 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 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.
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 -Enlighting 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 Industrial 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 representations and as the same were not considered, the application has been filed before this Tribunal with the prayers stated above.
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.
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 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.
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 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.
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.
It is stated by the7threspondent 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 8threspondent 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 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.
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.
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 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 8th 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.
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.
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.
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 Surjit 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 Haryana. 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 Ltd 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 may relate to more than one town or city. He has also relied upon an order passed by the NGT in Invertis University v. Union of India 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.
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.
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 8th 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 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.
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.
Whether the scheme of setting up of the Municipal Solid Waste Processing Facility proposed by the 6threspondent 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?
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?
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.
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 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".
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".
It is thereafter the applicants have filed the present application on 14-05-2015 praying for the following relief:
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 1st and 11th respondents to initiate appropriate action against the 6th and 7th respondents for violation of the EIA Notification, 2006.
C. Direct the 1st, 8th and 11th 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".
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 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.
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.
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.
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 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.
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 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.
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)
The site does not fall within CRZ III zone as per CRZ guideline 2011 Notification
There are no mangroves in the vicinity. The property is not in mudflat, there are no sand dunes within the site".
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.
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 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".
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 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.
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"
There are few other definitions under Rule 3 which are relevant and are as follows: Rule 3(xvi) "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"
"Disposal", as defined under rule 3 (viii) is as follows:
""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."
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."
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:-
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.
The municipal authority or an operator of a facility shall make an application in Form-I, for grant of authorization for setting up waste 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.
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".
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.
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.
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.
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.
The authorization shall be valid for a given period and after the validity is over, a fresh authorization shall be required.
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".
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
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 bin collection (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;
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 be mixed 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.
The municipal authority shall notify waste collection schedule and the likely method to be adopted for public benefit in a city or town.
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.
3.
Storage of municipal solid wastes
Municipal authorities shall establish and maintain storage facilities in such a manner as they do not create unhygienic 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:-
(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 compost or 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 solid wastes
Land filling shall be restricted to non-biodegradable, inert waste and other waste that are not suitable either for recycling or for biological processing. Land filling shall also be carried out for residues of waste processing facilities as well as preprocessing 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, landfilling shall be done following proper norms. Landfill sites shall meet the specifications as given in Schedule III.
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 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 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 26, 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 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 bio- medical 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".
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.
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