Sarika And Ors vs State Of Kerala And Ors

This application was originally filed as Writ Petition No.13942 of 2013 before the Hon'ble High Court of Kerala at Ernakulam under Article 226 of the Constitution of India for a writ of certiorari to quash Ex.P.5, the Project Report prepared by respondent No.2, Kayamkulam Municipality for the Solid Waste Management, to the extent it proposed to construct the Waste Treatment Plant in Ward No.23 and also for a Writ of Mandamus to command the respondents to implement the project in a scientific way in Ward No.22 and further to command the respondents not to extend the dumping of waste into 4.5 acres of land in Ward No.23 of Kayamkulam Municipality.

The case of the applicants, who are residents of Ward No.23 of Kayamkulam Municipality, claiming in the interest of General Public is that Kayamkulam Municipality has been using about 2 acres of land in Ward No.22 for dumping of the municipal solid waste generated in the municipal areas. It is contended that the said land was previously a grave yard and for the last 30 years, it has been used to dump not only the organic wastes but even plastic wastes and the said site is at the side of Malayan Thodu (Canal), which is a source of water for household and agricultural purposes. The said Thodu separates Ward No.22 and 23. Many of the residents in Ward No.22 shifted their residence to Ward No.23, due to the pollution being caused by the waste dump yard. The first respondent acquired 4.5 acres of land lying across Malayan Thodu in Ward No.23 for the purpose of using it as dumping yard, in addition to the one in Ward No.22. If it is materialised, it would cause severe environmental problem to the residents in Ward No.23, in addition to the pollution being caused to the water body. It would spoil the entire vegetation in the nearby land. The 2nd respondent obtained a direction from the Hon'ble High Court of Kerala in W.P (C) No.29648 of 2009 to construct a compound wall over 4.5 acres of land. The Hon'ble High Court of Kerala has also directed the Municipality to give top priority for setting up of a Plant for segregation and treatment of biogradable waste at the earliest. The Municipality did not get any Consent from the Kerala State Pollution Control Board (KSPCB) and in such circumstances, they cannot use the land in Ward No.23 as a dumping yard. On these allegations, the reliefs are sought for.

The 2nd respondent filed a counter-affidavit before the High Court of Kerala contending that the Municipality was originally in possession of 1.21 acres of land, in Ward No.22, out of which, 87 cents is being used as Municipal Waste Dumping Yard for the last 70 years. The rest of the land was used for constructing roads leading to the waste dumping yard. Everyday, about 10 Tonnes of waste is brought to the dumping yard from various parts of the municipal area. The area of existing dumping yard is insufficient for installing a Modern and Scientific Waste Treatment Plant. Therefore, the 2nd respondent acquired 4.5 acres of barren land situate on the southern side of the existing waste dumping yard in R.S.No.115/33, 34 and 35 and R.S.No.145/51 in 2009. There were no residential houses in that land. Nobody objected to the acquisition of the said land or the purpose of acquisition. The land was acquired for the purpose of construction of a Modern and Scientific Waste Treatment Plant, which includes windrow compost units, vermin compost units, bio-gas plant, plastic shredding units, sanitary land fill etc. A wall is to be constructed around the Plant and outside the said wall, a green belt is to be maintained and outside the green belt, another wall is to be constructed enclosing the entire acquired land. The solid waste collected by the municipal employees would be brought to the Treatment Plant and can be satisfactorily disposed of, after they are processed. The said Treatment Plant will not cause any pollution. Construction of such a plant is highly necessary. No such Modern and Scientific Solid Waste Treatment Plant can be constructed in the existing 87 cents of waste dumping yard, due to the insufficiency of land. It is contended that ever since the acquisition, people including the former owners of the land, were trying to create obstacles and hurdles to see that the project does not materialise. Writ Petition No.29648 of 2009 was filed by Chellappan and Haridasan challenging the proposal of the Municipality to acquire the land. The Hon'ble High Court of Kerala disposed the Writ Petition upholding the proposal subject to certain directions. There was a direction to construct a compound wall around the proposed site to ensure no seepage takes place. After that, the Municipality prepared a detailed estimate to construct a compound wall around the acquired land to prevent any seepage from the Waste Treatment Plant and to protect the acquired property. Inspite of lack of fund, the Municipality gave administrative and financial sanction for construction of compound wall by allotting a sum of Rs.56, 75,000/-. 85% of the compound wall has already been constructed and the balance work is in progress. The Municipality prepared a detailed project with the assistance of Suchitwa Mission, which is also known as 'Clean Kerala Mission' of the State of Kerala, for the establishment of Modern and Scientific Solid Waste Treatment Plant in the acquired properties and submitted copies of the same to the said Mission. Considering the importance of the project, the State Government through Suchitwa Mission, allotted and paid Rs.2.40 crores in two instalments. That allotment was with a specific condition that only after completion of the compound wall, the amount can be utilised. The existing Waste Dumping Yard is in 87 cents of land, which is in-sufficient for establishing a Modern and Scientific Solid Waste Treatment Plant envisaged in the project. As per the project report approved by the State Government and the Suchitwa Mission, the Solid Waste Treatment Plant is to be constructed and established in an area of about 1.87 acre and around the Treatment Plant, a wall of 2 meters height has to be constructed and in between the said wall and the outer compound wall, a green belt area is to be developed by planting trees. On the completion of the said project, the existing Waste Dumping Yard wall be used as land filling and capping place and for construction of watchman shed, office and well, water tank, toilets and bathroom etc. On completion of the compound wall around the acquired property, the Municipality started the construction work of the proposed Solid Waste Treatment Plant, as per the approved project and guidelines of the Kerala State Pollution Control Board. If the project is not materialised, it would bring devastating results. It is therefore, contended that the application is to be dismissed.

By order dated 26.08.2013, the Hon'ble High Court of Kerala at Ernakulam transferred the Writ Petition 13942 of 2012 to the National Green Tribunal following the direction given by the Hon'ble Supreme Court in Bhopal Gas Peedith Mahila Udyog Sangathan & Ors VS Union of India & Ors (2012 (8) SCC 3261.

After the receipt of the said Writ Petition, the Tribunal registered it as Original Application 301 of 2013. Though the 4th respondent originally appeared and no separate reply was filed before the Tribunal, did not appear. Inspite of opportunities given, the 4th respondent continued to be absent and the learned counsel was also absent. The Registry sent notice to the 2nd respondent Municipality as per the order of the Tribunal dated 05.10.2016.

Though notice was served, the 2nd respondent, has chosen not to appear and participate in the proceedings.

The 3rd respondent, Kerala State Pollution Control Board filed a reply contending that the existing land fill site of the 2nd respondent, Municipality is located at Murikkummoodu, which is around 3 km away from Kayamkulam and the new plot is located adjacent to the existing plot. The Kayamkulam Municipality has an area of 21.79 sq.km with a population of one lakh as per 2011 census. It is Grade II Municipality. The Municipality has been utilising 89 cents of its own land as landfill site for disposing the municipal solid waste for last several years. The Municipality generates around 20 tonnes per day of municipal solid waste, but it has facility to remove only 10 tonnes per day. The existing site could not be considered as a scientific landfill site, even though they have provided facility for collection of leachate, the same is not effective, especially, during rainy season. After discussion with the officials of the Board, the Municipality started to give a topping of red earth, after each day's dumping. But there were instances of dropping this practice due to non availability of red earth. Compaction of waste is not practiced and precautionary measures are not adopted during monsoon. Segregation of the waste at generation points is not practiced. It is because of the inadequacy of the existing land, the Municipality sought to establish a waste processing facility. For this purpose, 4 acres of barren land was acquired. The applicants are residing near the acquired lands and was anticipating sufferings on account of the Waste Treatment Plant. The 3rd respondent Board was also a party in the Writ Petition (C) No.29648 of 2009. The Municipality was directed to give top priority for setting up waste processing plant and to take action for segregation and treatment of biodegradable waste. The Municipality authorities had been directed several times from the Head Office and the District Office of the Board, regarding the setting up of and operation of the Municipal Solid Waste Treatment Plant and to report the progress on the implementation of Schedules I, II, III and IV of the Municipal Solid Wastes (Management and Handling) Rules 2000. At present the Municipality is maintaining the existing land by providing red earth topping and by planting shrubs and plants in that area. On 17.09.2014, the Municipality submitted an application for authorisation for setting up of waste processing facility in the newly acquired plot. The processes proposed include vermin composting, windrow composting and bio-gas plant. The estimated cost was Rs.3.87 crores. The report submitted by the Municipality do not contain the dimensional details of the compost and bio-gas plants. The essential documents like site plan and details of survey number were submitted only on 06.01.2015. Due to the absence of proper treatment facility, the Municipality is facing serious problems, such as dumping of solid waste from commercial establishments and residential buildings in public places, stagnation of waste water in drains due to disposal of solid waste, deposition of solid waste into drains and streams, difficulty in the movement of the vehicles of the Municipality in the existing dumping yard, shortage of labourers, shortage of closed vehicles for transportation of waste and inadequate facilities for removal of garbage and food waste from hospitals, auditoriums, hotels etc. For these reasons, the Municipality is able to handle only 50% of the total waste generated, which comes to around 20 tonnes. The Municipality expected to remove 17 tonnes of solid waste per day, once the proposed project is implemented. The proposal includes windrow composting plant of 15 tonnes capacity, vermin compost plant of 1 tonne capacity, a plastic shredding unit and sanitary landfillng.

On 25.09.2014 and 29.01.2015, the Board officials inspected the site. The land where the project is proposed to be located is adjacent to the existing landfill site. The proposed site is a low level area with the southern and northern sides bounded by natural drain (thodu) of around 5 m width. The thodu is mainly used for irrigation purposes. It is found that the new site is likely to get flooded during monsoon. In order to keep off flood waters, the Municipality is planning to raise the land level of the area ear marked for the project. The entire plot is provided with compound wall of 1.5 m height and inside the compound, a particular area is earmarked for the processing plant around which another internal compound wall of height 2 m is provided on all sides. No construction work was started in the site, except the completion of the inner and outer compound walls. The distance between the inner and outer compound wall varies from 2.45 m to 34.6 m. Vermi and windrow composting, fixed dome type bio-gas plant and plastic shredding units are proposed to construct inside the inner wall in an area of 78 cents.

The space between the inner and outer walls is to be utilised as buffer zone of no development, in which tree saplings have already been planted. As per the plan submitted by the Municipality, the plant is proposed in such a way that there will be no residences within 50 m from the inner wall. It was understood during discussion with the Municipal authorities that they do not have any alternate site. The old and new sites are located adjacent to each other with a natural drain (thodu) flowing in between. The water in the natural drain is used by the locals for irrigation and for washing of clothes. The Municipality proposed to connect the two sites by constructing a culvert over the natural drain. The thodu overflows during the monsoon and hence, the Municipality had to take measures to prevent entry of flood waters.

During the inspection, it was learnt that the main apprehension of the public is about the repetition of the failure of the project in the earlier site. The Board officials on 29.01.2015 collected well water samples from 10 wells located around the proposed site and also water samples from the natural drain at three different points i.e. at upstream of the site, adjacent to the site and downstream. No marked influence is seen in the well water samples as per the report of analysis of the said samples of water collected. The analysis report of the water in the thodu show high fecal caliform count at location adjacent to the existing plot but other parameters are found within limits. As per the delegation of powers, the authorisation is to be issued from the Regional Office of the Board at Thiruvananathapuram. It is contended that as the Municipality is not having other site, they should be given a chance to implement the plant. It is contended that if strict and specific conditions are complied, the project may achieve the target. It is pointed out that the proposal shows nothing about the segregation of waste, the mode of disposal of slurry from the bio-gas plant, the mode of collection and treatment of leachate, facilities proposed to divert run off and flood water, measures to be adopted to prevent pollution of the water in the thodu and ground water in the area, facilities for odour control, fly and bird menace, details of the plastic shredding machine proposed with type of plastics proposed to be shredded and the mode of utilisation of the shredded plastic, schedule of implementation etc. The Board cannot take further action on the application submitted by the Municipality. If the plant is developed without proper environmental appraisal, there is a likelihood of environmental pollution, and health effects for villagers. Hence, a letter has been issued to the Municipality to check the above factors and resubmit the project report. The Municipality is yet to submit all the clarifications and convince the Board with proper planning. The Board will consider the application based on merits. If authorisation is granted then, the Board will conduct monthly monitoring to ensure the quality of well water around the site and also the quality of water in the natural drain, once in a month. The plant will be inspected regularly once it starts functioning.

The other respondents did not file the reply.

Learned counsel appearing for the applicant and the 3rd respondent were heard.

The application would undoubtedly establish that the apprehension of the applicants is about the disastrous environmental problem in case the disputed land is used for dumping solid wastes. The people residing near the acquired plot for construction of Solid Waste Treatment Plant, opposed the project. Their apprehension is based on the pollution and health hazards caused by the dumping of solid waste by the Municipality in Ward No.22 experienced by them and the apprehension that the Municipality would use the acquired land also as a waste dumping yard.

It is admitted in the reply filed by the 2nd respondent before the Hon'ble High Court of Kerala as well as the reply filed by the 3rd respondent that 87 cents in Ward No.22 belong to the Municipality and is being used for dumping the solid waste and finding it insufficient, the Municipality decided to set up a Modern Scientific Waste Treatment Plant, for which, the 2nd respondent Municipality acquired 4.5 acres of land in Ward No. 23, which is adjacent to the existing solid waste dumping yard. When the Municipality decided to acquire the said land for setting up a Waste Treatment Plant, two of the residents of the nearby land approached the Hon'ble High Court of Kerala by filing a Writ Petition in No.29648 of 2009 contending that the Solid Waste Treatment Plant could be established in the existing dumping yard and the nearby land cannot be acquired for this purpose. As it is the case of the Municipality that the existing land is insufficient for the purpose of setting up a Modern and Scientific Solid Waste Treatment Plant, the Hon'ble High Court of Kerala did not interfere with the decision to acquire the land for setting up of a Modern and Scientific Solid Waste Treatment Plant. As per the reply filed by respondents 2 and 3, the Hon'ble High Court taking note of the fact that if the Solid Waste is dumped without treatment, it will cause severe atmospheric pollution, directed the Municipality to immediately take steps and as first measure, construct compound wall, atleast over so much of the area where waste is dumped and to ensure that no seepage takes place. It was also noted that the Municipality has to get Consent from the Kerala State Pollution Control Board and the Board will monitor the plant and would suggest remedial measures, failing which appropriate action would be taken by the Board. With the above directions, the Writ Petition was disposed of . It is thereafter, the applicants approached the Hon'ble High Court apprehending that the acquired land would also be used as a dumping yard. The application discloses that their grievance is only regarding the environmental problem that may be caused, if the land is used for dumping the solid waste.

Reply filed by the respondents 2 and 3 establish that the purpose of acquisition or the intention of the Municipality is not to use the land as a solid waste dumping yard. Instead it is for the purpose of setting up of a Modern Scientific Solid Waste Treatment Plant. The copy of the project Ex.P5, which is sought to be quashed by the applicants, establishes that the plant would consist of Windrow Compost Unit, Vermi Compost Unit, Bio Gas Plant, Plastic Shedding Unit, Sanitary landfill and green belt. Therefore, the apprehension expressed based on the usage of the land as a Solid Waste Dumping Yard has no substance. It is also pertinent to note that the prayer is not to quash the project proposal as such, but only to the extent it proposed to construct the plant in Ward No.23.

A Solid Waste Treatment Plant can be established and starts its operation only after getting the required authorisation from the KSPCB. If such an authorisation is granted and the applicants find that there is any defect in the consideration of the granting of authorisation, they have always the right to approach the Tribunal, challenging the authorisation. Therefore, there is absolutely no necessity to consider the apprehensions of the applicants at this stage. More so, when the apprehension is about utilizing the land as a solid waste dumping yard, whyen it is clear that it is not so.

The project was prepared and submitted by the 2nd respondent, Kayamkulam Municipality to the Kerala State Pollution Control Board. As disclosed by the Board, it was returned back to the Municipality at a time when the Municipal Solid Waste (Management and Handling) Rules 2000 was in force. In supersession of the said Rules, the Solid Waste Management Rules 2016 were notified by the Government of India, Ministry of Environment, Forests and Climate Change number as S.O.1357 (E). Therefore, the proposal of setting up of a Solid Waste Treatment Plant is now to be considered by the State Pollution Control Board only under the Solid Waste Management Rules, 2016. The very concept of a dumping yard is now no more in existence, in view of the new Solid Waste Management Rules, 2016. In fact, if the Solid Waste Management Rules, 2016, is properly implemented, there would be no necessity to set up a solid waste dumping yard as was the case originally under the Solid Waste ( Management and Handling) Rules 2000.

The new Rules fixes the duties of waste generators, namely, every person or group of persons, every residential premises and non residential establishments including Indian Railways, defence establishments, which generate solid waste, The duties of Ministry of Environment, Forest and Climate Change, Ministry of Urban Development, Department of Fertilisers, Ministry of Chemicals and Fertilisers, Ministry of Agriculture, Government of India, Ministry of Power, Ministry of New and Renewable Energy Sources, Secretary-in-charge, Urban Development in the States and Union Territories, District Magistrate or District Collector or Deputy Commissioner, Secretary-in-charge of Village Panchayats or Rural Development Department in the State and Union Territories, Central Pollution Control Board are all separately provided. The duties and responsibilities of local authorities and village Panchayats of census towns namely, urban area as defined by the Registrar General and Census Commissioner of India, and certain agglomerations, State Pollution Control Board or Pollution Control Committee, manufacturers or brand owners of disposable products and sanitary napkins and diapers and Industrial Units are all separately provided.

Rule 19 provides the criteria regarding setting up of solid waste processing and treatment facility. The said Rules reads:

"19. Criteria for Duties regarding setting-up solid waste processing and treatment facility:-

(1) The department in-charge of the allocation of land assignment shall be responsible for providing suitable land for setting up of the solid waste processing and treatment facilities and notify such sites by the State Government or Union territory Administration.

(2) The operator of the facility shall design and set up the facility as per the technical guidelines issued by the Central Pollution Control Board in this regard form time to time and the manual on solid waste management prepared by the Ministry of Urban Development.

(3) The operator of the facility shall obtain necessary approvals from the State Pollution Control Board of Pollution Control Committee.

(4) The State Pollution Control Board or Pollution Control Committee shall monitor the environment standards of the operation of the solid waste processing and treatment facilities.

(5) The operator of the facility shall be responsible for the safe and environmentally sound operations of the solid waste processing and or treatment facilities as per the guidelines issued by the Central Pollution Control Board from time to time and the Manual on Municipal Solid Waste Management published by the Ministry of Urban Development and updated from time to time.

(6) The operator of the solid waste processing and treatment facility shall submit annual report in Form III each year by 30th April to the State Pollution Control Board or Pollution Committee and concerned local body."

Schedule I of the Rules deals with specifications for sanitary landfills. Clause 'J'of Schedule I provides the procedure for closure and rehabilitation of old dumps. It reads :

"J. Closure and Rehabilitation of Old Dumps:- Solid waste dumps which have reached their full capacity or those which will not receive additional waste after setting up of new and properly designed landfills should be closed and rehabilitated by examining the following options:

i. Reduction of waste by bio mining and waste processing followed by placement if residues in new landfills or capping as in (ii) below.

ii. Capping with solid waste cover or solid waste cover enhanced with geomembrane to enable collection and flaring / utilisation of greenhouse gases.

iii. Capping as in (ii) above with additional measures (in alluvial and other grained soils) such as cut-off walls and extraction wells for pumping and treating contaminated ground water.

iv. Any other method suitable for reducing environmental impact to acceptable level."

Schedule II of the Rules relates to the standards of processing and treatment of solid waste. Standards for composting, standards for treated leachates, standards for incineration are all separately provided in Schedule II.

For the purpose of this case, we find it not necessary to reproduce the same.

As the authorisation for setting up of the Solid Waste Treatment Plant can be granted by the 3rd respondent only in accordance with the Solid Waste Management Rules 2016, we find it not necessary to give directions, except directing the 2nd respondent, Kayamkulam Municipality to comply the criteria for site selection and standards for setting up solid waste processing and treatment facility as specified in the Solid Waste Management Rules 2016. The third respondent, Kerala State Pollution Control Board has to consider the same in accordance with the Solid Waste Management Rules 2016 and has to grant or reject the authorisation in accordance with law.

Before parting with the case, we find it necessary to remind the 1st respondent of the duties and responsibilities provided under Rule 15 of the Solid Waste Management Rules 2016. We deem it necessary to remind the Secretaries-in-charge of the Village Panchayat or Rural Development Department in the State of Kerala, the District Magistrates and District Collectors of their duties as provided under Rule 12 of the Solid Waste Management Rules 2016 and the Secretary-in-charge of Urban Development in the State of Kerala regarding the duties provided under Rule 11 of the Solid Waste Management Rules, 2016. It is pointed out at the Bar that the Solid Waste Management Rules 2016 are not being properly implemented in the State of Kerala. It is not a happy situation. It was also pointed out at the Bar that experience show that Thumkar (Alzppuzha) model of Solid Waste disposal is very effective and friendly, and it could be followed by all the Corporations, Municipalities and Panchayats of the Kerala State. It is for the authorities, including the Secretary-in-charge of the Urban Development in the State of Kerala, the Secretary-in-charge of the Village Panchayats or Rural Development Departments in the State and the authorities of the Village Panchayats, the Municipalities and the Corporation of Kerala to consider and decide that aspect. But all should scrupulously follow the Solid Waste Management Rules 2016 and make Kerala the Gods on country, in the true sense. To achieve the same, we direct the Chief Secretary of the State of Kerala may convene a meeting of all the concerned Secretaries and officials of the Departments, including the State Pollution Control Board, Grama Panchayat, Municipalities and Corporations to decide the implementation of the Solid Waste Management Rules 2016. In the meeting, the question of following the Alappuzha model of Solid Waste Disposal may also be considered. Forward a copy of judgment to the Chief Secretary, State of Kerala.

The Original Application is, disposed of with above directions. There shall be no order as to costs.