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Judgment
This application seeks enforcement of order of this Tribunal dated 22. 11.2019 in O.A No. 884/2019 directing remedial action against damage to the environment on account of burning of garbage and causing pollution of River Khoh, in District Pauri Garhwal, by dumping garbage therein by the Nagar Palika Dugadda. The said order is reproduced below:-
"2. Report has been filed by way of an affidavit of the District Magistrate, Pauri Garhwal acknowledging the problem and stating that further remedial action has been taken as follows:
"11. That at present there is one dumping site available in the area at Chunadhara situated along the Khoh River and for safety, the Nagar Palika has already constructed a Wall on the site for stopping the solid waste. The solid waste is being stored, segregated and is being treated at the above said site.
The above said site is not developed with the latest scientific technique.
That at the time of joint inspection disposal of any type of solid waste is not found in the river.
That at present, the segregation work of solid waste is being done by the Nagar Palika Dugadda in the building of Garhwal Mandal Vikas Nigam. The condition of the above said building is dilapidated and the Executive Officer of the Nagar Palika informed that the maintenance of the above said building is being done by the Garhwal Mandal Vikas Nigam.
That at the time of joint inspection the Executive Officer, Nagar Palika informed that the Nagar Palika has identified the land for disposal site at village Badi Gaudi Patti Sheela2, the land belongs to the Revenue Department of Uttarakhand. The proposal for the same has already been sent to the Chief Conservator of Forest, Monitoring Evaluation I.T. and Modernization, Uttarakhand, Dehradun, Uttarakhand. It is further submitted that joint inspection of the above mentioned site in question has already been done, digital map site in question i.e. Village Badi Gaudi Patti Sheela-2 have already been prepared by the Department of Forest, Uttarakhand. It is further submitted that the D.P.R. has already been prepared and has been sent to the Department of Urban Development, Government of Uttarakhand on 18.10.2019.
That as soon as D.P.R. is approved by the State Government, immediately thereafter, the process for starting the identified site will be completed and after completion of process etc. the site will be made operational as per requirement of Solid Waste Management Rules within a period of next six months.
That with regard to Kotdwar it is respectfully submitted that the reserved forest is located around the Nagar Nigam Kotdwar as well as three rivers namely Khoh, Sukhro and Malan are passing through the area of Nagar Nigam, Kotdwar. This area is most populated, consisting of about 2 lakhs population. The land for the trenching ground i.e. for solid waste management is not being identified due to reason i.e. reserved forest is located around area and because the area is surrounded by three above said rivers.
That in compliance of order dated 17.09.2019 passed by this Hon'ble Tribunal a joint inspection of the trenching grounds of Nagar Nigam Kotdwar and Nagar Palika Dugadda were conducted by the officers of Nagar Nigam Kotdwar, Nagar Palika Dugadda, Pollution Control Board and Sub Divisional Magistrate, Kotdwar. The report dated 24.09.2019 of the said joint inspection was already sent to this Hon'ble Tribunal.
That direction with regard to spraying the pesticide at the present sites in question given by the officials of the Uttarakhand Pollution Control Board is being followed regularly by the Nagar Nigam Kotdwar and Nagar Palika Dugadda. To avoid any pollution by the waste in the river and to avoid any water pollution during the monsoon season a security wall has already been constructed by the Nagar Nigam, Kotdwar on the river bed of the river.
That the spray of the pesticide and bleaching powder is being done regularly at the present sites in question by the Nagar Nigam Kotdwar as well as the spray of the medicines and chemicals is regularly done by the Nagar Palika Kotdwarin the drainages and potential dirt areas, so that the city of Kotdwar may not be affected by the pollution. There is no air pollution in the city of Kotdwar because of dense reserved forest located around the city.
That no suitable place is available with the Nagar Nigam Kotdwar to dispose off the waste and the Nagar Nigam Kotdwar is facing problem for the same, therefore, to solve the problem an online proposal has been sent to the Department of Forest on 3.7.2019 for providing the plot of 01 (One) Hectare for establishing the solid waste management site. A true translated copy of the said letter dt.3.7.2019 along with its enclosure and photocopy of the original in Hindi is annexed hereto and marked as ANNEXURER-2.
That due to the reason that reserved forest is located around the Nagar Nigam Kotdwar as well as three rivers namely Khoh, Sukhro and Malan are passing through the area of Nagar Nigam, Kotdwar, therefore, suitable land could not be identified for establishing the solid waste management plant/ trenching ground. A demand vide letter No.1151/N.Ni./Tho.A.Prall3humi/19-20 dated 07.11.2019 also has been sent to the General Manager, SIIDCUL, Dehradun for providing land measuring 2 (two) hectare land out of 11.6590 Hectare banzar land of KhataNo.34 category 5 (3)-D situated in Mouja Jaydevpur, Haldukhata, Industrial Area Sigaddi, Kotdwar, Uttarakhand A true translated copy of the said letter dt.7.11.2019 along with photocopy of the original in Hindi is annexed hereto and marked as ANNEXURER-3. 22. That the tender has already been invited by the Nagar Nigam, Kotdwar for constituting the D.P.R. for the management of solid waste and for disposing the waste scientifically. The construction work will be started immediately whenever the land is made available by the Department of Forest or by the General Manager, SIIDCUL, Dehradun, to complete this procedure about one year time will be required, so that the solid waste management will be done scientifically at Nagar Nigam Kotdwar."
The above report shows sorry state of affairs and unfortunately long time of one year is proposed for the remedial action. Unscientific waste management is one of major causes for damage to the environment as well as to the public health. This Tribunal has already directed that such delays in making of DPRs for every individual town should be avoided. There should be State level specifications for prompt management. Reference may be made to order dated 07.03.2019 in O.A. No. 606/2018 passed in the presence of the Chief Secretary, Uttarakhand. As regards availability of land for waste processing, land occupied by garbage dumps needs to be retrieved and utilized in terms of observations in order dated 17.07.2019 in O.A. No. 519/2019.
In view of above, let the Secretary, Urban Development, Uttarakhand ensure that prompt steps are taken for ensuring scientific disposal of the solid waste, preventing burning of garbage and encroachment of the forest area."
The matter was further considered on 09.10.2020 whereby the grievance that no action was being taken was considered as follows:-
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According to the applicant, the order has not been complied with even after eight months. The applicant wrote to the District Magistrate on 30.07.2020 to which no response has been received. The applicant has filed a recent photograph of Khoh River bank at Kotdwar in support of the submission that unscientific waste management continues and legacy waste remains unremediated. Learned counsel for the State PCB submits that certain steps are being taken and matter be deferred for some time so that compliance can be shown. The compliance report may include clearance of legacy waste site. The new site should meet siting criteria, should process daily generated waste with material recovery and its routing for reuse/recycling.
In view of the above, let the Secretary, Urban Development, Uttarakhand, Uttarakhand State PCB and District Magistrate, Patriarchal ensure compliance before the next date. Counsel for the PCB may convey the order to the concerned authorities for compliance."
The matter was last considered on 16.04.2021 in light of report of State of Uttarakhand dated 02.03.2021 and report of the District Magistrate, Pauri Garhwal dated 16.01.2021 showing continued violations of the statutory rules and orders of this Tribunal. The Tribunal accordingly observed:
"5. From the above, it is seen that the State authorities are pleading lack of coordination as excuse for complying with its basic responsibility of providing pollution free environment and complying with statutory obligation under the statutory Solid Waste Management Rules, 2016. Therein, timelines for specific steps are laid down which stand crossed. This Tribunal has laid down scale of compensation for such delay to be credited to a separate account for being spent for restoration of environment and fixing accountability for delay. The matter has to be monitored at the level of Chief Secretary so that no department is able to take the plea that responsibility is of another department which plea is still being raised above. Under the binding Supreme Court judgements, plea of lack of funds for such purpose is not available as such funds can be collected from the concerned citizens. Strict liability is laid down under environment law on absolute responsibility principle for failure to carry out statutory mandate such violations being punishable offences in view of danger to public health by such failures. The Tribunal has passed exhaustive directions on the subject in the presence of Chief Secretary of the State. The order of this Tribunal dated 28.02.2020 in O.A. No. 606/2020 is reproduced below for ready reference:
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In view of above, consistent with the directions referred to in Para 29 issued on 10.01.2020 in the case of UP, Punjab and Chandigarh which have also been repeated for other States in matters already dealt with, we direct:
a. In view of the fact that most of the statutory timelines have expired and directions of the Hon'ble Supreme Court and this Tribunal to comply with Solid Waste Management Rules, 2016 remain unexecuted, interim compensation scale is hereby laid down for continued failure after 31.03.2020. The compliance of the Rules requires taking of several steps mentioned in Rule 22 from Serial No. 1 to 10 (mentioned in para 12 above). Any such continued failure will result in liability of every Local Body to pay compensation at the rate of Rs. 10 lakh per month per Local Body for population of above 10 lakhs, Rs. 5 lakh per month per Local Body for population between 5 lakhs and 10 lakhs and Rs. 1 lakh per month per other Local Body from 01.04.2020 till compliance. If the Local Bodies are unable to bear financial burden, the liability will be of the State Governments with liberty to take remedial action against the erring Local Bodies. Apart from compensation, adverse entries must be made in the ACRs of the CEO of the said Local Bodies and other senior functionaries in Department of Urban Development etc. who are responsible for compliance of order of this Tribunal. Final compensation may be assessed and recovered by the State PCBs /PCCs in the light of Para 33 above within six months from today. CPCB may prepare a template and issue an appropriate direction to the State PCBs/PCCs for undertaking such an assessment in the light thereof within one month.
b. Legacy waste remediation was to 'commence' from 01.11.2019 in terms of order of this Tribunal dated 17.07.2019 in O.A. No. 519/2019 para 281 even though statutory timeline for 'completing' the said step is till 07.04.2021 (as per serial no. 11 in Rule 22), which direction remains unexecuted at most of the places and delay in clearing legacy waste is causing huge damage to environment in monetary terms as noted in para 33 above, pending assessment and recovery of such damage by the concerned State PCB within four months from today, continued failure of every Local Body on the subject of commencing the work of legacy waste sites remediation from 01.04.2020 till compliance will result in liability to pay compensation at the rate of Rs. 10 lakh per month per Local Body for population of above 10 lakhs, Rs. 5 lakh per month per Local Body for population between 5 lakhs and 10 lakhs and Rs. 1 lakh per month per other Local Body. If the Local Bodies are unable to bear financial burden, the liability will be of the State Governments with liberty to take remedial action against the erring Local Bodies. Apart from compensation, adverse entries must be made in the ACRs of the CEO of the said Local Bodies and other senior functionaries in Department of Urban Development etc. who are responsible for compliance of order of this Tribunal. Final compensation may be assessed and recovered by the State PCBs/PCCs in the light of Para 33 above within six months from today.
c. Further, with regard to thematic areas listed above in para 20, steps be ensured by the Chief Secretaries in terms of directions of this Tribunal especially w.r.t. plastic waste, bio-medical waste, construction and demolition waste which are linked with solid waste treatment and disposal. Action may also be ensured by the Chief Secretaries of the States/UTs with respect to remaining thematic areas viz. hazardous waste, e-waste, polluted industrial clusters, reuse of treated water, performance of CETPs/ETPs, groundwater extraction, groundwater recharge, restoration of water bodies, noise pollution and illegal sand mining.
1 The Chief Secretaries may ensure allocation of funds for processing of legacy waste and its disposal and in their respective next reports, give the progress relating to management of all the legacy waste dumpsites. Remediation work on all other dumpsites may commence from 01.11.2019 and completed preferably within six months and in no case beyond one year. Substantial progress be made within six months. We are conscious that the SWM Rules provide for a maximum period of upto five years for the purpose, however there is no reason why the same should not happen earlier, in view of serious implications on the environment and public health.
d. The compensation regime already laid down for failure of the Local Bodies and/or Department of Irrigation and Public Health/In-charge Department to take action for treatment of sewage in terms of observations in Para 36 above will result in liability to pay compensation as already noted above which are reproduced for ready reference:
i. Interim measures for phytoremediation/ bioremediation etc. in respect of 100% sewage to reduce the pollution load on recipient water bodies - 31.03.2020. Compensation is payable for failure to do so at the rate of Rs. 5 lakh per month per drain by concerned Local Bodies/States (in terms of orders dated 28.08.2019 in O.A. No. 593/2017 and 06.12.2019 in O.A. No. 673/2018) w.e.f. 01.04.2020.
ii. Commencement of setting up of STPs - 31.03.2020. Compensation is payable for failure to do so at the rate of Rs. 5 lakh per month per STP by concerned Local Bodies/States (in terms of orders dated 28.08.2019 in O.A. No. 593/2017 and 06.12.2019 in O.A. No. 673/2018) w.e.f. 01.04.2020.
iii. Commissioning of STPs - 31.03.2021. Compensation is payable for failure to do so at the rate of Rs. 10 lakh per month per STP by concerned Local Bodies/States (in terms of orders dated 28.08.2019 in O.A. No. 593/2017 and 06.12.2019 in O.A. No. 673/2018) w.e.f. 01.04.2021.
e. Compensation in above terms may be deposited with the CPCB for being spent on restoration of environment which may be ensured by the Chief Secretaries of the States/UTs.
f. An 'Environment Monitoring Cell' may be set up in the office of Chief Secretaries of all the States/UTs within one month from today, if not already done for coordination and compliance of above directions which will be the responsibility of the Chief Secretaries of the States/UTs.
g. Compliance reports in respect of significant environmental issues may be furnished in terms of order dated 07.01.2020 quarterly with a copy to CPCB."
Vide order dated 14.12.2020 in O.A. No. 606/2018, Compliance of Municipal Solid Waste Management Rules, 2016 and other environmental issues, further direction issued is as follows:-
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The compensation in terms of earlier order be recovered and credited to a separate account with the Environment Department of the States/UTs to be used for restoration of environment in the concerned States/UTs. The deposit, instead of being made with the CPCB, may now be made to the said account."
The order of the Tribunal is binding as a decree and violation is also criminal offence under section 26 of the National Green Tribunal Act, 2010. It is a matter of regret that in the State of Uttarakhand there is rampant violation of directions of this Tribunal as shown by the report in present case as well as in O.A. No. 144/2019 and O.A. No. 168/2019 listed today. Accordingly, we direct the Chief Secretary of Uttarakhand to ensure that remedial action is taken, which may include compliance of rules in respect of setting up of waste processing plant and clearing legacy waste site, recovery of compensation and coercive action against erring officers. Compliance report be filed before the next date by e-mail at [email protected] preferably in the form of searchable PDF/ OCR Support PDF and not in the form of Image PDF."
The matter has been heard today along with O.A. No. 144/2019 and O.A. No. 168/2019. No separate report has been filed in the present matter, in pursuance of above, though in O.A. No. 144/2019, a report has been filed which deals with status of compliance at Kotdwar. The Tribunal in the said case by a separate order has observed:
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Moreover, there is no mention for the payment of compensation for restoration of environment and action against erring officers, in terms of orders of this Tribunal quoted earlier. Learned Counsel for the State has no explanation for such non-compliance inspite of directions in the last order.
We, thus, note with disappointment the attitude of the State in not adhering to the rule of law in complying with the specific directions of this Tribunal and for failing to comply with the statutory mandate of waste management rules, having statutory timelines, violation of which is criminal offence.
Let the Chief Secretary, Uttarakhand now take further stringent remedial action consistent with the spirit of the orders already passed and the present order, in accordance with law."
In the present matter also, the above observations have to be repeated as the situation is identical. Accordingly, we direct the Chief Secretary, Uttarakhand to take stringent further remedial action with regard to the violations in managing the waste at Dugadda in District Pauri Garhwal on the same pattern.
The application is disposed of.
A copy of this order be sent to Chief Secretary, Uttarakhand by e-mail for compliance.