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Judgment
This application seeks review of order of this Tribunal dated 13. 02.2023. By the said order, the Tribunal dealt with the issue of violation of environmental norms in shifting the dumping zone and garbage lying on the dumping site at Bandha Road, Faizzullaganj, Priyadarshini Colony, Sector-D, Lucknow. Such violation was resulting in obnoxious smell to the detriment of environment and public health.
The Tribunal considered factual report dated 07.01.2023 filed by the joint Committee constituted by this Tribunal to the effect that the contractor, M/s Eco Green Energy Private Limited had failed to perform its contractual obligations to scientifically handle the waste. According to the State PCB, the violations were established for which compensation was levied against the Lucknow Municipal Corporation and prosecution was also recommended.
The Tribunal also considered the affidavit filed by the Lucknow Municipal Corporation which itself showed that most of the remedial measures were at the planning stage only. Measures taken were inadequate. Accordingly, the Tribunal directed further remedial measures and levy of compensation of ₹10 Crore against the Lucknow Municipal Corporation on ‘polluter pays’ principle to be utilized for restoration of environment in terms of District Environment Plan. It was directed that if deposit was not made, the Commissioner, Lucknow Municipal Corporation will not be entitled to draw salary after 01.04.2023.
Operative part of the order is reproduced below:
“13. We now proceed to consider the issue in the present case. The record shows serious failure on the part of the Corporation in complying with waste management norms which has obviously resulted in damage to the environment and public health for which the Corporation and the Commissioner are accountable.
Affidavit of the Corporation itself shows that it is still at the stage of planning and preparing proposals. It is content by giving contract to a contractor who failed to perform and violations as alleged by the applicant and the State PCB have taken place for which no coercive measures such as black listing, claiming compensation, terminating contract have been taken nor alternative arrangements made even though prescribed timelines under statutory rules have since expired. This clearly shows the collusion of the Corporation and the contractor to the detriment of public health. The State PCB has not taken adequate remedial measures and has merely sought sanction under section 197 Cr.PC for violations which can hardly be held to be in discharge of public duties. The action of the State PCB is thus stonewalling action against the violator. Order of the Tribunal in para 11 requires explanation about legality/viability of operation of Transfer Station which has not been explained. Further, in para 13 of the order, precise information was sought on quantum of waste generation, quantity of waste processed and remediation of legacy waste site. However, no information is furnished. This shows lack of sincerity on the part of the Corporation. Violations are acknowledged in the form of foul smell, blockage of drains, leachate discharge and piling of garbage at transfer stations even though under the Rules, the garbage has to go to end destinations like composting centres, MRF, waste to energy plants, integrated waste management plants. Needless to say such failure causes immense hardship to citizens and generates methane gas which leads to climate change.
Accordingly, while directing expeditious compliance of norms in managing the waste for acknowledged violations for long time and which are serious, we fix the interim compensation of Rs. 10 crores against the Corporation on polluter pays principle which may be deposited with the State PCB within one month but positively before 31.03.2023, which will be the personal responsibility of Commissioner, Lucknow Municipal Corporation. The interim compensation will be over and above the compensation assessed by the State PCB. The amount may be utilized for restoration of environment in accordance with the District Environment Plan of the District associating the District Magistrate. If there is a failure in deposit, the Commissioner, Lucknow Municipal Corporation will not be entitled to draw salary after 01.04.2023.
Action taken report with status of compliance and details of waste generated and processed as on 30.04.2023 be filed by 15.05.2023 by e-mail at [email protected] preferably in the form of searchable PDF/OCR Support PDF and not in the form of Image PDF.”
(Emphasis supplied)
In this review application, it has been submitted that action had been initiated against the contractor, who have failed to carry out necessary measures resulting in violation of norms. There are serious challenges in waste management, as the city is densely populated and growth has been unsystematic.
We have considered the matter. Apart from the fact that the review cannot rehearing, it remains undisputed that there are serious violations. As per stand of the Lucknow Municipal Corporation itself in its legal notice addressed to its contractor, which has been annexed to this application, violations are acknowledged, including the following:-
“34. That due to deficiency of your service and poor collection of waste material from door to door, people are throwing waste material at open place and same is resulting into borne disease like Malaria, Dengue etc. in this way you are also violating the clause 1.2 of Section I of Schedule-G (Operation and Maintenance Requirements) of Concession Agreement. The purpose of Service Goal is defeating. It need not to be mentioned here that sometimes small garbage dumps caught fire and it leads to air pollution.
The due to your poor performance, runoff in rainy reason carries the litter to nearby surface drains and it blocks the free flow of water and polluting the drains. Your conduct is sinister design to malign the reputation of my client in public at large and it downgrading the ranking of Lucknow Municipal Corporation in Swachh Survekshan.”
Lucknow Municipal Corporation could not avoid responsibility for the violations as the contractor is the agent of Corporation. Lucknow Municipal Corporation has not responded about “overall status of the city to comply MSW Rules giving quantum of waste generation, installed and operational status of waste processing facilities and legacy waste which has to be remediated” in terms of para 13 of the order dated 20.01.2023.
Thus, even by way of showing indulgence, only modification which we can make is that instead of Corporation itself making separate deposit of ₹10 Crore, as directed, it will be free to use the funds allocated by the State, in terms of order dated 23.03.2023 in O.A. No. 606/2018, subject to the Chief Secretary, Uttar Pradesh, allocating the said amount separately for the Lucknow Municipal Corporation within one month from today. The direction against drawl of salary by the Commissioner, Lucknow Municipal Corporation will also stand deferred on such condition. Let compliance report be filed as earlier directed by 15.05.2023 by email at [email protected] preferably in the form of searchable PDF/OCR supported PDF and not in the form of image PDF.
Review application is disposed of.
A copy of this order be forwarded to the Chief Secretary, Uttar Pradesh and Commissioner, Lucknow Municipal Corporation by email for compliance.