Mr. Bidyut Mohanty vs District Collector, Koraput Ajnd Ors

One Mr. Bidyut Mohanty from village Janiguda in Koraput district of Odisha had invoked the jurisdiction of this Tribunal in O.A. No. 78 of 2015 under Section 18(1) read with Section 14(1) of the National Green Tribunal Act, 2010 (for short "NGT Act") praying for a direction to the State Respondents and the State Pollution Control Board (for short "PCB") primarily to enforce the provisions of the Plastics Waste (Management and Handling) Rules, 2011 (for short "Rules 2011") in the Gupteswar Temple area in the district of Koraput in the state of Odisha and also issue suitable notification declaring the Gupteswar Temple Area as "Plastic Free Zone".

According to the applicant, the Gupteswar Temple, the abode of Lord Shiva, is a famous sacred place located inside a cave in reserve forest of Koraput at the altitude of 2850 feet and pilgrims in lakhs from all over the country visit the shrine every year particularly during the month of 'Sravana' to worship and seek blessings from the Lord. It is also a picnic spot for a large number of people of the state and neighbouring states. It is the allegation of the applicant that although the area bears mythological and historical importance and being part of the Eastern Ghats it is a biodiversity rich area, the State Respondents have so far failed to implement the provisions of Rules, 2011 resulting in rampant and unrestricted use of polythene carry bags, coloured recycled carry bags, plastic disposable caps, plastic/thermocol plates, polythene water pouches, plastic sachets containing gutkha, panmasala, tobacco etc. with an average generation of 4 metric tons of garbage everyday. There has been no systematic collection and disposal of such wastes and all these wastes are indiscriminately dumped in Gupteswar Reserve Forest as well as the river Saberi flowing at the base of Gupteswar Cave Temple. Some coloured photographs were annexed with the application depicting the accumulation of plastic wastes in this area in question.

Due to such massive and indiscriminate use of plastics and improper disposal of plastic wastes in violation of the Rules 2011 the applicant sought the intervention of this Tribunal with the following prayers.:-

a) Direct the respondents 1, 2 and 5 to take necessary measures for awareness on restricted uses of plastics by putting and hoardings and other communication measures in collaboration with other stakeholders.

b) Direct the Respondents No. 1 & 2 to enforce the provisions in Plastic Waste Management and Handling Rules, 2011.

c) Direct the Respondents No. 1, 4 and 6 to bring suitable order/notification declaring the Gupteswar Temple Area as No Litter and Plastic Free Zone.

d) Direct the Respondent No.3 to produce the status report on constitution of the state level advisory committee and proceedings of the advisory committee meeting under Plastic Waste Rule 2011.

e) Direct the Respondent no. 4 to produce the annual reports and action taken reports in regard to Plastic Waste Management and Handling Rules, 2011.

f) Direct the Respondents No.1, 2, 3, 4, 5 and 6 to constitute a coordination committee for effective implementation and enforcement of Plastic Waste Management and Handling Rule 2011 in respect of entire Koraput District with emphasis on Tourism Centres/places."

PCB, the Respondent No.5 in their reply affidavit, would submit that in terms of Rule 9 of Rules 2011, the role of PCB is limited to grant and renewal of grant of registration for the Plastic manufacturing Unit, grant/refusal of consent for such manufacturing units under the Water (Prevention and Control of Pollution) Act, 1974 (for short "The Water Act") and the Air (Prevention and Control of Pollution) Act, 1981 (for short, "The Air Act") and to prepare and submit the annual report to the CPCB on the implementation of these rules in accordance to Rule 12 of the afore-stated Rules, 2011. However, for enforcement of the provisions of Rules 2011 relating to the use, collection, segregation, transportation and disposal of plastic wastes, concerned municipal authority is the appropriate authority.

The PCB, for implementing of the aforesaid Rules and to make the people and urban local bodies aware of the provision of the Rules has circulated the salient features of Rules by publishing in the local and National dailies, conducting seminar, work-shops and training programme in different localities of the State, sponsoring live telecasting of public awareness programme on use of polythene bags, issuing directions to Urban local Bodies to send their segregated plastic wastes for co-processing in cement kilns, constituting squad to identify illegal/unauthorised plastic units as well as units manufacturing carry bags of less than 40 micron thickness etc.

The State Respondents, the Respondents No. 1,2,3,5, 6 & 7 and the Chief Secretary while refuting the allegations of the applicant, would state that the State Level Advisory Body has already been constituted by the State, vide Notification No. 1679 dated 29.01.2013 of Forest and Environment Department, Govt. of Odisha and the meeting of the State Level Advisory Body was held on 25.02.2013 and following decisions were taken in the meeting for effective implementation of Rules, 2011 in the State:-

"1. Mass awareness shall be created through Posters, Pamphlets, Handouts, TV programmes etc. regarding menace of plastic wastes. Besides, Training programmes, seminars, workshops etc. may be taken up to discourage the use of plastic carry bags in the State

Action: State Pollution Control Board/Municipal Authority

The list of plastic manufacturers and recycling units registered with MSME Department shall be collected and their consent status shall be verified by State Pollution Control Board.

Action: SPCB

3 Since most of the polythene carry bags having less than 40 microns are being supplied from other States to Odisha, strictvigilance is necessary at interstate check gates. Handy equipments to measure thickness shall be provided at interstate check gates and staff posted there shall be trained by SPCB for taking measurements. Polythene stock entry having carry bags of less than 40 microns thickness shall be seized and legal action as per the provisions of Environment (Protection) act shall be initiated.

A monitoring squad comprising BMC. SPCB and City Forest division may be constituted to raid on stockiest of Bhubaneswar/Cuttack to seize the polythene carry bags below 40 microns.

Action: H&UD Deptt./BMC/SPCB/City Forest division

Any violation of Plastic Waste (M&H) Rules, 2011 attracts penal provision of Environment (Protection) Act, 1986. As per Section 19 of E.P. Act, District Collectors and Sub-Collectors have been authorized to take cognizance of the offence under that Act in their jurisdiction and file prosecution in Judicial Court for violation of the provisions of Act. Since the municipalities have greater role in implementing the Plastic Waste (M&H) Rules, 2011, the Municipal Commissioners/Executive Officers of municipalities may be empowered to take cognizance of offence in their jurisdiction under Section 19 of EP Act for effective implementation of the Plastic Waste (M&H) Rules, 2011.

Action: Municipal Authority

Municipal Corporation/Municipality shall identify/set up Plastic Waste collection centres in their jurisdiction.

Action: Municipal Authority

The role of rag pickers for collection of plastic wastes is well recognized Municipal Authority may pay some incentives to the rag pickers for providing plastic waste at collection centres set up by the Municipal Corporation/Municipalities.

Action: Municipal Authority

BMC may take the lead for preparation of an action plan and strategy to make Bhubaneswar city free from plastic wastes. The segregation of plastic wastes may be attempted at house hold level in some wards on pilot basis. Hoardings appearing for keeping city free from plastic wastes may be placed at important locations.

Action: BMC

Minimum rate of polythene carry bags depending upon their quality and size which covers their material and waste management costs shall be fixed by the Municipal Authority in consultation with EPM authorities.

Action: Municipal Authority

Works Deptt. may be requested to explore the use of waste polythene in road construction activities.

Forest & Environment Department shall identify and provide experts for training in field of Plastic Waste Management.

Action: Forest & Environment department"

There was categorical submission by the Respondent No.2, the Divisional Forest Officer, Jeypore Forest Division that immediately after the shravan Monday festival, solid and plastic wastes are cleaned and disposed off outside the notified forest area by the forest squad people, volunteers, NGOs etc. and the allegation that there is massive and indiscriminate use of plastics inside Gupteswar PRF has also been vehemently opposed by the Respondent No.2.

Similarly, the Collector of the District, the Respondent No.1 would submit that there is proper solid waste management as well as plastic waste management in the periphery as well as in the Gupteswar Temple area and Gupteswar Reserve Forest and the District Administration has advised all the officers including the Temple authority not to use banned plastic bags in violation of Rules 2011. Even awareness programmes were conducted in the nearby villages & near the entrance of Gupteswar Temple area, adequate number of dustbins are provided for collection of wastes and dumping yard has been identified to dump the collected wastes. It is the submission of the respondents that festival season in Gupteswar Temple is limited to 15-20 days in a year and the waste generated during such period is of limited quanity which are taken care of by the temple authority and district authority in accordance to the provision of Rules 2011.

The Gupteswar cave temple is located within the limit of Gram Panchayet, not within municipal area for which the concerned Municipal Authority, the prescribed authority in terms of Rules 2011 , has a limited role to play in the plastic wastes management in the area in question. However, during 2006 the Govt. of Odisha, in exercise of the powers conferred by Section 5 of the Environment (Protection) Act, 1986, read with notification of the Government of India in the Ministry of Environment and Forests No. SO-152(E) dated 10.02.1988 and Rule 4 of the (Protection) Rules, 1986, has appointed the Divisional Forest Officers (DFOs/Asst. Conservator of Forests (ACFs) on 20.03.2006 to enforce the ban on polythene bags under 20 micron thickness. Although there were rival submissions made by the parties on the management of plastic waste in the Gupteswar Temple area, we are inclined to accept the contention of the applicant who has annexed few photographs depicting the plastic waste menace in the area. We are also equally concerned of the fact that the cave temple is within a reserve forest of rich biodiversity and mismanagement and improper disposal of plastic wastes will have definite impact on flora and fauna as well as the river ecology. The local Durua tribal community depends upon the forest for their livelihood and it is also their demand to make the area 'plastic free'. Therefore, based on the suggestion which emerged during the argument to declare the Gupteswar Temple Area and its surrounding as plastic free zone we directed the State Respondents, the applicant and the State PCB to place before us appropriate suggestions for enabling us to pass appropriate directions.

The PCB in their affidavit would submit that in place of the Plastic Waste (Management and Handling) Rules, 2011, a new rule has been notified by the Ministry of Environment Forest and Climate Change namely, "Plastic Waste Management Rules, 2016 (for short "Rule 2016) with effect from 18th March, 2016 and in accordance to 12(3) of this Rules, 2016, the concerned Gram Panchayet shall be the authority for enforcement of the provisions of these rules in the rural areas. The Board is of the view that since Gupteswar Temple comes within the limit of Boiparaguda Panchayet Samiti in Koraput District, this Gram Panchayet is the authority to implement the provisions of the Rules, 2016.

Rule 12 of Rules 2016 which deals with prescribed authority, is reproduced below:-

"12. Prescribed authority:-(1) The State Pollution Control Board and Pollution Control Committee in respect of a Union Territory shall be the authority for enforcement of the provisions of these rules relating to registration, manufacture of plastic products and multilayered packaging, processing and disposal of plastic wastes.

(2) The concerned Secretary-in-charge of Urban Development of the State or a Union Territory shall be the authority for enforcement of the provisions of these rules relating to waste management by waste generator, use of plastic carry bags, plastic sheets or like, covers made of plastic sheets and multilayered packaging.

(3) The concerned Gram Panchayat shall be the authority for enforcement of the provisions of these rules relating to waste management by the waste generator, use of plastic carry bags, plastic sheets or like, covers made of plastic sheets and multilayered packaging in the rural area of the State or a Union Territory.

(4) The authorities referred to in sub-rules (1) to (3) shall take the assistance of the District Magistrate or the Deputy Commissioner within the territorial limits of the jurisdiction of the concerned district in the enforcement of the provisions of these rules."

The responsibility of Gram Panchayat has also been prescribed under 7 of the Rules 2016 which read as follows:-

"7. Responsibility of Gram Panchayat:- (1) Every gram panchayat either on tis own or by engaging an agency shall set up, operationalise and co-ordinate for waste management in the rural area under their control and for performing the associated functions, namely:-

(a) Ensuring segregation, collection, storage.

Transportation, plastic waste and channelization of recyclable plastic waste fraction to recyclers having valid registration, ensuring that no damage is caused to the environment during this process;

(b) Creating awareness among all stakeholders about their responsibilities; and

(c) Ensuring that open burning of plastic waste does not take place."

Thus in the area in question, the responsibility of the Panchayat is heavy for management of Plastic wastes.

In order to effectively implement the new rules notified in 2016 by MoEF & CC including the Plastic Waste Management Rules, 2016, the State Govt. constituted a working Group for preparation of the State policies and implementation strategy for Waste Management Rules, 2016 and the Working Group which met on 29th April, 2016 decided the followings:-

Proceedings of the meeting on Waste Management Rules, 2016(Solid, Plastic, Construction & Demolition Waste Management Rules) held on 29th April 2016 at 3.30 PM in the conference hall of H&UD Department

A meeting on Waste Management Rules 2016 (Solid, Plastic, Construction & Demolition Waste Management Rules ) was held on 29th April 2016 at 3.15 p.m. in the conference hall of H&UD department under the chairmanship of Commissioner-cum-Secretary, Housing and Urban Development Department.

Members present in the meeting is annexed.

After thread bare discussion on Waste Management Rules 2016 of GOI and the decision taken in the meeting conducted by Chief Secretary on 27th April, 2016, the following decisions are taken:-

a. Housing and Urban Development Department to prepare a policy and strategy which will include solid waste, plastic waste, construction and demolition waste managements in consonance with the rules of GOI.

b. Formulation of model bye-laws to be drafted for ULBs indicating user fees for various categories of Urban Local Bodies.

c. One working group comprising of the Team Lead SBM and all member of SBM will coordinate with Mr. D.K. Behera, Senior Environmental Scientist, Pollution Control Board, Social Development Expert, Deloitte for preparation of the State policy and implementation strategy for the above rules.

d. The strategy will also include the mechanism of enforcement of these rules.

e. A State advisory body shall be constituted under the chairmanship of Commissioner-cum-Secretary, Housing and Urban Development Department as prescribed by Solid Waste Management Rule, 2016.

f. The working group will meet on 2nd May, 2016 at 3.30 p.m. in the office of the Pollution Control Board to deliberate in details for preparation of the draft policy and implementation strategy along with enforcement mechanism of these Rules.

g. Commissioner-cum-Secretary will review the work done by the working group on 16th May, 2016 at 4.30 p.m.

Commissioner-cum-Secretary, Housing and Urban Development Department"

The suggestions filed by the State Respondents include-

(i) declaring area from Sabari River embankment to the temple of Lord Shree Shree Gupteswar as "PLASTIC FREE ZONE".

(ii) imposition of penalty of Rs.1000/- upon the first time offender/violators of Rules 2016 and Rs.2000/- for subsequent violation."

At the cost of repetition it may be emphasized that the area is ecologically sensitive and unregulated anthropogenic activity is likely to impact the pristine environment of Gupteswar cave temple. Therefore, in order to prevent the area from further environmental deterioration our approach must be based on "Precautionary Principle". The Principal Bench of NGT in case of Krishan Kant Singh Vs. M/s Triveni Engg. Industries Limited (O.A. No. 317 of 2014 ) has discussed the necessity of application of "Precautionary Principle" part of which is reproduced below:-

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The Precautionary Principle suggests that where there is identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution, in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or the entity proposing the activity that is potentially harmful to the environment. In the event of uncertainty, presumption should operate in favour of environmental protection and primary onus would shift in light of the presumption in favour of the environment and statutory obligation of the industry as afore referred. The test to be applied is that of a 'reasonable person'.

The 'Precautionary Principle' thus, demonstrates that an activity which poses danger and threat to the environment is to be prevented. Under this Principle, the State Government and the Local Authorities are supposed to first anticipate and then prevent the cause of environmental degradation by checking the activity. Lack of scientific knowledge as to whether particular activity is causing degradation should not stand in the way of government in analysing such harm. 'Onus of Proof' under this principle is on the actor or the developer to show that the action is environmentally friendly. We must notice here that the provisions of the Act of 2010 under Section 20 mandates that the Tribunal has to apply the 'Precautionary Principle' while adjudicating the cases under the environmental jurisprudence."

Therefore, we direct the State Pollution Control Board, Odisha, which is statutory authority to implement the provisions of the Water (Prevention and Control of Pollution) Act, 1974, the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986 & the rules made therein for the protection of Environment and for the prevention and control of pollution in the state, to take immediate steps in accordance with law, to prohibit the use, sale and processing of the plastic carry bags in the area covering three kilometre radius of Gupteswar cave temple in District Koraput of Odisha. The PCB shall file a compliance report in the registry within three months.

On the issue of imposition of penalty on the offender, it is left to the authority prescribed under the Rules 2016 to take decision in accordance with law.

In terms of Rule 16 of Rules 2016, the State Government shall constitute a State level Advisory Committee for effective monitoring of implementation of these rules. We direct the State Government to constitute the Advisory Committee and also bring out a policy document on implementation of strategy to deal with the problems due to plastic wastes in terms of Rules 2016. The compliance report shall be filed by the State Respondent No.6 in the Registry of the Tribunal within three months.

With the above direction, the O.A. is disposed off. No order as to costs.