TARUN BHARAT CHAUHAN And Ors vs UNION OF INDIA And Ors

Raghuvendra S. Rathore, J

Being aggrieved by the decision taken by the Respondents for setting up a Solid Waste Disposal project in Village Dundahera, (Ghaziabad) the Appellants, who are residents of Buland Heights Crossings Republic, NH-24 which is in the vicinity of the proposed site, have approached this Tribunal seeking directions:

a. To restrain the respondents from constructing Municipal Solid Waste Plant in Village Dundahera.

b. To strike down/not to give any effect to orders/directions/notification/approval of the respondents decision to construct Municipal Solid Waste Plant at Dundahera.

c. To direct the respondents to build Solid Waste Management Plant at some other alternative land instead of at Village Dundahera, Ghaziabad.

d. To cancel the NOC issued by Uttar Pradesh Pollution Control Board, respondent No. 5.

e. To direct the respondent the Union of India through MoEF, and Ministry of Finance not to disburse any grant to the Municipal Corporation, Ghaziabad for construction of Municipal Solid Waste Management Plan.

It has been averred by the Applicants, at the time of the filing of the Original Application, that they were not aware of the Environment Clearance having been granted to Nagar Nigam Ghaziabad, respondent No. 4 by State Level Environment Impact Assessment Authority, respondent No. 6. It has been submitted that it was in response to one of the queries raised under RTI, with regard to Environment Clearance, that Uttar Pradesh Pollution Control Board, respondent No. 5 had at point 11 stated that "no Environment Clearance/approval has been given in favour of proposed Municipal Solid Waste Disposal Plant at Village Dundahera, Ghaziabad". Accordingly, it had been pleaded in ground H of the Original Application and relief was sought not to give effect to orders/directions/notification/approval of the respondent's decision to construct Municipal Solid Waste Plant at Dundahera.

The Application was considered by the Tribunal on 20th September, 2013 and after taking note of the submissions made by the counsel and the facts and circumstances of the case that the application was admitted on that day. Further, stay order was granted against the respondents, directing them to maintain status quo as it existed on that day, till further orders. The matter was subsequently proceeded with and when Nagar Nigam respondent No. 4 filed their reply that it was known, for the first time, that Environment Clearance had been issued by SEIAA, respondent No. 6 on 24th April, 2013. Accordingly an amendment application was filed by the applicant before the Tribunal, seeking permission to convert the application into an appeal, on 17th August, 2015. The Tribunal granted permission to convert the application into appeal and ordered that necessary amendments be made and an amended application in the form of an appeal, be placed on record. Further the Tribunal specifically ordered, on that day, that it does not intend to disturb the interim orders which had been passed, in the interest of justice.

Accordingly, the appellant made amendment in the application by adding certain facts, grounds and the prayer clause wherein specific prayer was made with regard to cancellation of Environment Clearance dated 24.04.2013. The prayers made in the Appeal which came by way of amendment in the Original Application, are as follows:

(a) Restrain respondents from constructing Municipal Solid Waste plant at village Dundahera;

(b) Choose another site within the guidelines of Municipal Solid Waste rules for construction of Municipal Solid Waste plant;

(c) Strike down/not to give an effect to orders/directions/notifications/approvals of the respondents decision to construct municipal solid waste plant at Dundahera;

(d) Direct Respondent No. 1 and 2 not to disburse any grant to Municipal Corporation, Ghaziabad the respondent No. 4 herein for construction of municipal solid waste management plant;

(e) Direct the respondent to build solid waste management plant at some other alternate land instead of village Dundahera, Ghaziabad;

(f) Cancel the NOC issued by UPPCB, the respondent No. 5;

(g) Cancel the Environment Clearance dated 24.04.2013 granted by the respondent No. 6 to the respondent No. 4; and

(h) Pass such a further order which this Hon'ble Tribunal deem fit & proper in the facts and circumstances of the case.

Brief facts of the Case

The Appellants along with their families are residing at Buland Heights Crossings Republic, NH-24, Ghaziabad. The Applicant No. 1 had purchased his flat (flat No. 706, Tower A) by registered sale deed on 3rd July, 2012 and Applicant No. 2 had got his sale deed registered, in respect of his flat, (flat No. 702, Tower A) on 7th September, 2012. The colony in which the appellants are residing, has about 30,000 built up flats out of which about 9,000 flats are occupied by over 50,000 people.

The State of Uttar Pradesh had declared a policy on 21st May, 2005 due to increasing pressure on the Housing and establishment facilities in the urban areas. There was a demand of about 16 lakh housing units in 5 years and in each year 3.2 lakhs housing units were required because of scarcity of State financial resources and limited capacity. Therefore, the State had encouraged private capital investment so that the housing facility may be made easily available to all classes of society, according to their financial capacity. The role of the State Government was that of catalyst, in place of provider. The State Government laid emphasis on simplifying the procedure and to remove the constraints which were being faced by private sector in housing activities.

The land use in Village Dundahera, Ghaziabad, was agriculture up to the month of June, 2005. Later on a site was proposed at Village Dundahera for Solid Waste Management Plant. Simultaneously, in conformity with the policy of the State Government, the Master Plan 2021, for District Ghaziabad was finalized on 14.07.2005 after considering the objections raised from various quarters who were part of the decision making process, including Nagar Nigam Ghaziabad. Thereafter land use was changed from agriculture to residential and the land which was reserved for Solid Waste Management Plant in Dundahera was also included in residential use. Consequently, many construction projects started in Village Dundahera, Ghaziabad. Before the change of use in Master Plan, the Pollution Control Board, Respondent No. 5 had given no objection on 11.08.2004 for construction of the Solid Waste Management Plant. However, the said permission was cancelled on 15th July, 2008 on the ground that the use of the land, which was reserved for Solid Waste Management Plant, has been changed to residential. The residential units had started coming up on about 400 acres of land.

The State Government had also held a meeting, through Chief Engineer Urban Town Planning, to monitor the development of integrated township which is reflected from the minutes of 19th June, 2009. The township grew further to an area of about 760 acres which included 16 lakhs residential Flats, Commercial complexes, Malls, Hospitals, Educational institutions etc.

The State Pollution Control Board had again granted conditional NOC to Nagar Nigam on 23.11.2009 to build a Solid Waste Management Plant, subsequent to the issuance of notification dated 21.10.2009 by the State Government whereby Nagar Nigam Ghaziabad was authorized to set up the same. The NOC granted by Pollution Control Board to set up a Solid Waste Plant on 14 acres of land in Village Dundahera was on the condition that there shall be no violation of Municipal Solid Waste (Management and Handling) Rules 2000.

One of the residents of Crossings Republic, where Applicant also resides, raised a query under RTI on 24th April, 2012 and the same was replied by Pollution Control Board, Respondent No. 5 on 4th October, 2012. The relevant extracts of the reply given by Pollution Control Board is as under:

(b) "Point No. 7 of UPPCB reply:- In the case of non-disposal of the municipal solid waste in accordance with rules there would be effect of foul smell which would spread due to garbage lying in the disposal place. If such a situation is there the problems of public health may arise.

(c) Point No. 12 of UPPCB reply:- For the purpose of municipal solid waste disposal place under Environment Protection Act 1986 according to the provisions of notified EIA notification dated 14.6.2006 it is necessary to obtain environmental approval from EIA Authority. Apart from that according to the provisions of Municipal Solid Waste (Management and Handling) Rules it is necessary to obtain the authority from State Pollution Control Board."

Another query under RTI was made on 1st May, 2012 which was replied by the Pollution Control Board on 24.09.2012. The said reply is as follows:

(b) "point No. 11 of UPPCB reply:- No environment clearance/approval has been given in favour of proposed municipal solid waste disposal plant at village Dundahera, Ghaziabad.

(d) point No. 26 of UPPCB reply:- In Dundahera, the distance of nearby population from the place of proposed municipal solid waste disposal is around 50 meter in West direction and in North direction there is Sushant City Project adjacent to proposed solid waste management project."

The Authorities concerned have not so far started the construction for Solid Waste Management Plant and only the boundary wall has come in existence which surrounds the site.

The Respondent No. 6 had granted Environmental Clearance on the proposal of Respondent No. 4 vide order dated 24th April, 2013, which is under challenge in this appeal. The aforesaid reply, in response to one of the queries raised under RTI, Respondent No. 5 stated that no Environment Clearance has been granted in favour of the proposed MSW Plant at Village Dundahera. Thus at the time of filing the Original Application the Appellants had not challenged the EC as they were not aware about the issuance of the same. The Respondent No. 4 had mentioned about it in their reply filed on 17.01.2014 and a copy of the same was also filed along with it. The Environment Clearance issued on 24.04.2013 is said to have not been uploaded, even on the website. Subsequently, the Tribunal had granted permission on 17.08.2015 to convert the Original Application into an Appeal challenging the EC of 24th April, 2013.

The Ministry of Environment and Forests, Respondent No. 1 has filed reply and submitted that the contents of the same are incorrect and denied to the extent that they are inconsistent with the submissions made in its reply. Further, it has been averred in the reply that all contents and averments, unless specifically admitted therein, be treated as denied.

It has been stated in the reply that under the Environment (Protection) Act 1986 read with the Environment (Protection) Rules, 1986 and in supersession of the notification number S.O. 60(E) dated the 27.1.1994, except in respect of things done or omitted to be done before such supersession, the Ministry of Environment & Forests had issued a Notification No. SO 1533(E) : MANU/ENVT/0034/2006 dated 14.09.2006 and its subsequent amendments.

Under the provisions of this Notification, the construction of new projects or activities or the expansion or modernization of existing projects or activities listed in the Schedule to the said Notification entailing capacity addition with change in the process and or in technology, shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level authority, namely the concerned State Environment Impact Assessment Authority (SIEAA), duly constituted by the Central Government under sub-section (3) of section 3 of the said Act, in accordance with the procedure specified therein in the notification.

The Municipal solid waste management facility is a category 'B' project and falls under category 7(i) of the Schedule to the EIA Notification, 2006, which requires environmental clearance from SEIAA. As per the EIA notification, the project proponent has to submit an application seeking prior environmental clearance in the prescribed Form 1 after the identification of prospective site for the project to which the application relates, before commencing the activity, or preparation of land at the site by the applicant. In view of the above, the EC must be considered by SEIAA.

The role of the answering respondent is to facilitate framing of rules and regulations, broad policies, programs and guidelines on municipal solid waste management. The subject as such lies with the State and the State Governments/Urban Local Bodies is to plan, design, execute and operate the waste management schemes in urban areas of the country.

Further, the Respondent No. 1 issued a notification bearing No. S.O. 908(E) dated 25th September, 2000, framing the Municipal Solid Wastes (Management and Handling) Rules (hereinafter referred to as the Rules), 2000 under the Environment (Protection) Act, 1986. The rules are enforceable from the date of its publication in the official gazette and are uniformly applicable to the whole of the country.

As per rule 4 of the above mentioned Rules, every Municipal authority, within its territorial jurisdiction, is responsible for implementation of the provisions of these Rules and for infrastructure development; for collection; storage; segregation; transportation; processing and disposal of municipal solid wastes. It is the responsibility of the Municipal authority or an operator of waste management facility to take an authorization for setting up of waste processing and disposal facility including secured landfills from the concerned State Pollution Control Board, as aforesaid and in the present case is Uttar Pradesh Pollution Control Board (UPPCB). As per rule 7(2) of the above mentioned Rules, the waste processing and disposal facilities are required to meet specifications and standards as specified in Schedules III and IV of the said Rules.

Schedule III of the Rules prescribes specifications for landfill sites. Clause 25 to 29 of the said Schedule III provides for specifications for ambient air quality monitoring of the land filing site. As per Rules, it is mandatory to install landfill gas control system including gas collection system at landfill site to minimize odour generation; prevent off-site migration of gases and to protect vegetation planted on the rehabilitated landfill surface.

The Schedule specifies that the concentration of methane gas generated at landfill site shall not exceed 25 per cent of the lower explosive limit (LEL). The landfill gas from the collection facility to a landfill site shall be utilized for either direct thermal applications or power generation, as per viability. Otherwise, landfill gas shall be burnt (flared) and shall not be allowed to directly escape to the atmosphere or for illegal tapping. Passive venting shall be allowed if its utilization or flaring is not possible. Ambient air quality at the landfill site and at the vicinity shall be monitored to meet the following specified standards, namely:-

The ambient air quality monitoring shall be carried out by the concerned authority as per the following schedule, namely:-

a) Six times in a year for cities having population of more than fifty lakhs;

b) Four times in a year for cities having population between ten and fifty lakhs;

c) Two times in a year for town or cities having population between one and ten lakhs.

The State Pollution Control Board is required to 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 of the aforesaid Rules.

As per clause 13 of the Schedule III of the above mentioned Rules, approach and other internal roads for free movement of vehicles and other machinery shall exist at landfill site.

Clause 22 of Schedule III of the above mentioned rules lays down provisions to prevent pollution problems from landfill operations and Clause 23 of the same pertains to water quality monitoring.

Clause 4 of the Schedule-II of MSW Rules provides for procedure for transportation of municipal solid waste.

On behalf of Ministry of Urban Development, Government of India, Respondent No. 2 an affidavit has been filed for making submission in respect of the present case. It has been submitted that the present matter pertains to restraining the Respondents from construction of Municipal Solid Waste at Village Dundahera, Ghaziabad (U.P.). Further, it has been submitted that Solid Waste Management is a State subject and it is the responsibility of the respective State Government to plan/design/execute and operate the projects in respect of it in urban areas of the respective States. It has been submitted that Ministry of Urban Development, Respondent No. 2 merely facilitates the said process by framing broad guidelines, programmes and policies for the facility of waste management. These guidelines etc are only recommendatory in nature.

Respondent No. 2 has further submitted that since the present matter pertains to the State of Uttar Pradesh, it is for the respective States to take appropriate action. Therefore, the Ministry of Urban Development, Respondent No. 2 is only a Proforma party and no relief has been sought against it in the present appeal.

The State of Uttar Pradesh, respondent No. 3 and the Principal Secretary, Housing and Urban Planning, State of U.P., respondent No. 7 have filed a joint reply to the application. It has been stated, by way of preliminary objections, that the applicant has concealed the fact that Crossings Republic and Ansal Properties have filed SLP before the Hon'ble Supreme Court and the same are pending adjudication.

Further, it is submitted that initially a public interest litigation was filed before the Hon'ble Supreme Court in the year 1996 wherein directions had been given for establishment of solid waste management and drainage improvement center in the area of Air Force Stations in the country. The said directions were issued for all the cities in which air force stations are located. The Ministry of Urban Development and Poverty Eradication of the Central Government was to provide the funds for establishment of urban waste management plants which included the city of Ghaziabad.

The Municipal Solid Waste (Management and Handling) Rules, 2000 were notified by the Central Ministry Environment and Forest on 24th September 2000. Thereafter a plan was prepared by the experts of HUDCO to select the site for disposal of urban waste by scientific means. The preparation of composite plant and land fill is the main part of the scheme. A joint inspection was carried out by Deputy Advisory of CPHO associated with the Ministry of Urban Development along with the experts of HUDCO, representatives of Hindon Airport and the Regional Manager of UPPCB. The land of about 14 acres in village Dundahera was identified for construction of the plant. Subsequently land use was changed by Ghaziabad Development Authority (GDA) and it was made available to U.P. Jal Nigam by Nagar Nigam Ghaziabad. A boundary wall was constructed by Jal Nigam around the land in village Dundahera.

Ghaziabad Master Plan 2021, after approval of the State Government, came into operation and was enforced from 14th July, 2005. In the Master Plan of 2021, the land use of 14 acres of land in question was shown as residential.

The State Government had, under its housing policy to resolve the shortage in housing and to make available to the public at large, notified the integrated township policy on 21.05.2005 by virtue of which it was proposed that the land acquisition and development for the purpose of housing schemes shall be done with the help of private investments. In terms of policy of 2005, the committee constituted under it by the State Government, proposed that licenses to Ansal Properties for development of 152.89 acres of land and Crossing infrastructure for development of 360 acres of land which included the 14 acres of land upon which SWM plant was proposed to be built. Only after approval of the Board, that the licenses were granted on 29th of May, 2006 to both the developers. Thereafter, on the recommendations of Nagar Nigam, the State Government changed the land use of 14 acres of the land in question from residential to dumping yard, vide notification dated 21.10.2009. Land use of 14 acres of land in village Dundahera, as it presently stands is that of dumping yard. It is further stated in the reply (Para 20) that respondent No. 4 has obtained the environmental clearance, on 24.04.2013 issued by the State Level Environment Assessment Authority.

Nagar Nigam Ghaziabad, respondent No. 4 has contested the matter by filing a reply wherein the averments made in appeal have been denied and the relief prayed for have been opposed. It has been averred in the reply that contents of para 1 of the application is a matter of record and hence needs no comments. In respect of the contents para 2 to 9 of the appeal, it has been averred that they are description of status and duties of all the respondents which is a matter of record and hence needs no comments. So far as para 10 of the appeal is concerned, respondent Nagar Nigam has denied the same as being wrong and incorrect. It has also been denied that the surrounding wall of SWM Plant is 30 meters away from the road. It has been averred that beyond 30 meters road there are left out pavements, adjacent to the said road, which is more than 30 meters on both sides and on one side is the village situated. It is also stated that apart from it, there is by-lane and big drain in between the road and flats. It is stated that it is 50 meters away and as per the report of environment committee it meets the prescribed standard.

The contents of para 11 and 12 have not been commented upon by the respondent on the ground that they are a matter of record. Similarly, in respect of Sub para (a) of the application no comment has been made on the ground that it is a matter of record. In respect of contents of para (b) it has been averred that they are wrong and hence denied. Further, it is stated that the Master Plan 2021 was not in existence till June 2005 and the area of Village Dundahera was outside the purview of the Ghaziabad Master Plan 2021. The land was notified for dumping yard with the direction of Government of India; the Rules of 2000 and in compliance of the orders of Supreme Court in the case of Almitra H. Patel.

The contents of para (c) of the appeal have been admitted to the extent that no objection was given by the U.P. Pollution Control Board on 11.08.2004 under which the first compliance report had to be submitted up till 20.12.2004. It is averred further that because of the intervention of the Court including the Tribunal that the work could not be completed. For contents of para (d) it has been submitted that they need no comments. It is stated that contents of para (e) of the application are not concerning the respondent, hence the same are denied for want of knowledge. It is submitted that the Government had by orders dated 12.02.2008 and 21.10.2009 reconfirmed that 14 acres of land of Village Dundahera is for dumping yard. The contents of para (f) have been denied for want of knowledge.

The contents of para (g) of the application have been admitted by the respondent to the extent that U.P. Pollution Control Board, the monitoring body for SWMP, has made under Rule 2000. It has also been submitted that the answering respondent had applied for EC, vide application dated 15.10.2008, to the State Environment Impact Assessment Authority at Dundahera and no objection certificate had been granted on 24.04.2013 and it was to expire on 24.04.2016. Further, it has been submitted that since time to complete the project is very short, it is in the interest of justice to vacate the interim order and permit the answering respondent to complete the SWMP.

In respect of para (h) it has been averred that the same is wrong and misleading, hence denied. It is stated that no objection for EC was granted on 23.11.2009 by UPPCB in accordance with the rules of 2000 and by SEIAA on 24.04.2013 which is valid up to 24.04.2016. Further, respondents have stated that it is necessary to comply with the terms and conditions of the Rule of 2000 by all concerned persons, as SWMP is for larger public interest. It has also been submitted that due to multiple litigation regarding dumping yard and interference by courts at the instance of the flat owners and builders that the project could not be completed.

As regards the contents of para (i) of the application it has been averred by the respondent in the reply that the same pertains to interpretation of various provisions of the Rules 2000, therefore, no specific comments are required and would be met at the time of hearing. The contents of para (k) of the application are, according to the respondent, wrong and misleading, hence denied. It is stated that the pleadings are based on high assumptions which are without any concrete and solid evidence. The project in question fully takes care of all environmental problems as per prescribed standards fixed by the respective competent authorities. The contents of para (l) are said to be wrong and misleading, hence denied. It is stated that while establishing the dumping yard in question, the answering respondent has taken care of, all the requirement at their end. It is also stated that the residential structures have been raised subsequent to the establishment of dumping yard and in unauthorized manner by the builders who have crossed the buffer zone of 500 meters. It is also stated that it appears that the applicant have been cheated by the colonizers for which the dumping yard meant for public cannot be stopped.

The contents of para (m) of the application have been denied, as being wrong and misleading. It is said that regarding environment clearance the application of the answering respondent was pending for active consideration and finally clearance was issued on 24.04.2013. Similarly, para (n) of the application has been denied for being wrong and misleading. It has also been denied that the answering respondent has violated any terms of condition of the Rules 2000. It has been stated that Ghaziabad Development Authority has the duty to maintain buffer zone of 500 meters surrounding the land fill site and if any construction by the builder is allowed, surrounding the establishment of dumping yard, then it is illegal and due to the officers of GDA. The contents of para (o) and that the answering respondent has violated any provision of the Rules of 2000, have been denied as being wrong and misleading. Likewise the contents of para (p) have been denied as being wrong and misleading and without any basis.

The answering respondents have also denied the contents of para (q) of the application as being wrong and misleading. It is stated that if the work related to dumping yard is not allowed to be completed then the entire area of Ghaziabad city would suffer and the public money invested will be futile, as well as the same would be full of garbage and unhygienic substances will occur and other people of Ghaziabad will have to suffer at the high mass level. It is also stated that dumping yard project is highly scientific and environment friendly.

The contents of para (r) have also been denied by the respondent as being wrong and misleading. It is stated that integrated township policy was under challenge from its inception. Therefore, the construction made during the period is illegal and unauthorized which needs to be demolished, otherwise Ghaziabad city will become unclean and unhygienic city as it is adjacent to Delhi, the capital of India. The contents of para (s) have also been denied. It has also been stated that the construction of SWMP had started in October 2004 and a boundary wall was also constructed around the land in Village Dundahera by the Jal Nigam.

While, denying the contents of para (t) it has been stated that due to hindrance in the construction of dumping yard created by the builders, accelerated the cost of construction on the answering respondent. The committee constituted by the High Court has decided the difference of acceleration in the cost of construction as Rs. 6 crore 30 lakhs and Rs. 11,000 which is to be recovered from the persons who created the hindrance in the work of dumping yard. Contents at para (u) have also been denied.

In reply to the ground (a ton) the respondents have averred that all the grounds are argumentative in nature and are either repetitive of what is stated in the brief facts hereinabove or contrary to what has been stated in the foregoing paras hence these grounds need no comments.

The appellant has filed a rejoinder to the reply submitted by Nagar Nigam, respondent No. 4. While denying the averments made by Nagar Nigam in its reply, it has been submitted that it is wrong to say that they have filed the present application concealing facts that an SLP has been filed before the Supreme Court. It has been stated by the appellant that they are not even a party before the Hon'ble Supreme Court of India nor before the High Court. The appellants occupied the respective flats in the month of October/November 2012 and came to know about the development of dumping yard at the proposed site, after a few months of their occupation. It is also stated that Crossings Republic is a consortium of nine builders/developers. Each of the developer has developed its own project. The appellants are residing in one of those projects at Buland Heights. Nagar Nigam, respondent No. 4 had filed a transfer petition, as recorded by the Tribunal in its order dated 03.12.2013, before the Hon'ble Supreme Court, for transfer of the present application/appeal. The appellants have come to know that the said transfer petition has been dismissed by the Hon'ble Supreme Court on 13.12.2013. It is also stated by the applicants that as a resident of Buland Heights, Crossings Republic, Ghaziabad, they have a legal right and a grievance against the proposed waste management plant to be constructed in the vicinity of the colony, at a distance of less than 50 meters.

It has been further stated in the rejoinder that the site for the plant was identified when the use of the land at Dundaheda was agriculture. The State of U.P. had announced a housing policy on 21.05.2005 due to increasing pressure on housing and establishment facilities in the town areas as there was a demand of 16 lakh housing units in five years and each year 3.2 lakh housing units where required because of scarcity of State financial resources and limited capacity. On 21.05.2005, the State Government had, in pursuance of National Policy of Housing, floated an integrated township policy to develop on approximate 800 acres of land. The Master Plan of Ghaziabad 2021 was implemented on 14th July, 2005, by which the use of the land earlier reserved for dumping yard was changed to residential in village Dundaheda. The Municipal Commissioner, Nagar Nigam Ghaziabad was one of the member of the committee which approved the change of use to residential in the Master Plan of 2021. After the land use became residential, the layouts of all the builders where approved by GDA. Thereafter all residential complexes in Dundaheda village were developed. Presently 15,000 flats are already existing and more than 10,000 families are residing in the multi storey flats of Amarpali Group, Assotech Group, Prateek Group, Exotica, Skytech buildings etc. which have come up with 18 storeys and above. Each of these flats constructed by the builders are just adjoining the proposed dumping yard land.

Behind these flats there are other flats constructed by the builders such as Buland Heights, Arihant, Crossings Republic, Gardenia, Pancheel, Proview, Golden Heights, Cosmos, Dreamland, Supertech, Paramount, Gaur, Ajnara, Saviour etc. These flats are comprising of 18 storeys and above. According to the appellant, after all these major developments having taken place and people occupying those flats, the respondent cannot say that the construction had taken place after subsequent change of land to dumping yard.

It has been denied that the dumping yard is already established and that residence and developing area could be established beyond 500 meters from dumping yard. It has been stated by the applicant that only a boundary wall exists around proposed site of dumping yard, whereas all the flats of the builders, as explained above, have already come up around the site. All the builders have constructed their flats after the layouts having been approved by GDA. The condition of 500 meters buffer zone applies to the dumping yard which is being proposed. Even otherwise, since the buildings have already been constructed with occupancy of people now it is an impossible task to have such a zone. As per Municipal Solid Waste Management Rule, 2000 a land fill site should be atleast 500 meters away from notified habituated area. A zone of 500 meters around a land fill boundary is to be declared as no development zone, after the land fill location is finalized. It is also stated that it is wrong and denied that the report of the committee was to be complied by parties/builders as they came later to the establishment of dumping ground which was established earlier to the alleged development. It is stated that dumping yard had not been established when the buildings of the applicant and other surrounding area came for development. The land use of area reserved for dumping yard had already stood changed to residential and thereafter the layout plan of the building were approved by GDA. According to the appellant the averments in the reply suffer from gross ambiguity and total miss-projection of the position on record and the one on the spot. Pursuant to the change of land use from dumping yard to residential as per the Master Plan 2021, the NOC to set up solid waste management plant was cancelled by UPPCB on 15.07.2008. Therefore when these buildings were being built the use of the land was residential. Furthermore, building of dumping yard is in midst of residential colony is not sacrosanct which the answering respondent is insisting upon. The appellants have also submitted that it is wrong that all of a sudden GDA prepared the Master Plan 2021 for Ghaziabad by wrongly including the name of Dundahera in it. The Municipal Commissioner, Nagar Nigam, was member of the committee which approved the change of use in the Master Plan, 2021. The Master Plan 2021 bears the signature Nagar Ayukt Ghaziabad. It is wrong that the land use was changed by the State Government. The Master Plan of 2021 had Chairman GDA, Secretary Housing UP State Government, Member of Ministry of Town Planning, Project Director, UP Jal Nigam, Municipal Commissioner, Nagar Nigam Ghaziabad etc. as the committee members. No work of municipal solid waste management plant had started at that time except a boundary wall, which is the position till date.

There was no occasion for respondent No. 4 to apply for EC on 15.10.2008, once the use of land was changed by Master plant to residential and on that ground UPPCB had cancelled the NOC on 15.07.2008. Even if once an application was received by SEIAA respondent No. 6 way, back on 15.10.2008, why in an unprecedented haste between March 2013 and April 2013 the environment clearance was granted in favour of SWMP by ignoring all round construction activity, the development around the proposed site and when the area had become thickly populated.

It has also been stated that there are number of project proponents in the area. A number of buildings have come up around the proposed site for SWMP. Further SEIAA did not examine and discuss project proposals in its meeting dated 22.03.2013, 02.04.2013 and 17.04.2013. The committee had not noted that the proposals were adequately addressed for management of air pollution, water pollution, noise pollution etc. The committee did not discuss the details of the project surrounding, inclusive of the distance and directions from the periphery of the land fill site alongwith the proposals of green belt with 25 meters width in west direction and 20 meters width in SSW direction. The dumping yard site, at a distance of 25 meters, cannot be built from habitation clusters and is a clear violation of Rules of 2000. Already many tall buildings of 18 storey and above have come up and as such 30 feet wall or 25 meters will not make any difference. Further the committee had not noted the provision of 30 feet high wall from two sides and a boundary wall of 1.8 meters height on the other two sides is proposed.

The committee had also not discussed the calculations for effective buffer zone requirement in view of green belt provision as provided by the project proponent. It has been admitted by respondent No. 4 that the land fill site shall be away from habitation clusters. The committee also did not observe that the Municipal Commissioner vide his letter dated 30.03.2013 had requested the Ghaziabad Development Authority to maintain a buffer zone of no development around the municipal solid waste site at Dundahera, Ghaziabad. The committee had also not observed that GDA should be directed to maintain a buffer zone of no-development around the landfill site and should be incorporated in the town planning department's land use plans. It is stated that the proposed solid waste management plant is surrounded by various builders, multi storey flats of Amarpali group, Assotech group, Prateek group, Exotica, Skytech to the south which comprises of 18 storeys and above.

Each of these buildings/flats are just adjoining the proposed dumping yard land. Behind these flats there are other flats such as Buland Heights, Arihant, Crossings Republic, Gardenia, Pancheel, Proview, Golden Heights, Cosmos, Dreamland, Supertech, Paramount, Gaur, Ajnara, Saviour etc. The distance between Ansal Sushant City project is just wall to wall distance from proposed SWMP. All these multi storey flat have come up pursuant to their layout plans having been approved by GDA. Chipiyana village is on the North side and Shaberi village on the east side. Since all round construction activity had taken place, where thick population is residing around the proposed SWMP, there is no scope for buffer zone to be maintained or to be incorporated in the land use plans of the town planning department.

The proposed solid waste management plant is bound to contaminate the underground water and bad smell to affect the health of residents in the vicinity of SWMP site. Therefore, according to the appellants the site for SWMP be shifted from the present one to another which would in no way tilt the balance against the concept of sustainable development as interests of the citizens who have constitutional right to clean environment must prevail over such arbitrary action of corporation.

The environment clearance dated 24th April, 2013 granted for solid waste management plant is illegal, violative of Municipal Solid Waste (Management and Handling) Rules 2000 and is liable to be cancelled. The layouts of these multi storey flats have been approved by GDA where all around construction activity having taken place and thick population is residing around the proposed SWMP. Thus there is no scope for a buffer zone to be maintained and to be incorporated in the town planning department land use plans. It is further stated that a buffer zone of 500 meters was to be maintained by respondent No. 4. It is also stated that it was due to increasing pressure on the housing and establishments facilities in the town area as there was a demand of 16 lakhs housing, as such the State of Uttar Pradesh announced a housing policy on 21.05.2005. The said policy was announced because of scarcity of State financial resources and limited capacity.

The agreement executed between respondent No. 4 and M/s. Holofix Pvt. Ltd. for implementation of project is void ab initio. The applicants after having come to know from the replies filed by the respondents, in the present matter, that a case is pending before the Hon'ble Supreme Court and that a stay had been granted in that case on 26.02.2013. If that be so, the act of respondent No. 4 in entering into an agreement dated 25.04.2013 with Holofix Pvt. Ltd for implementation of project for disposal of municipal solid waste is contempt of the Hon'ble Supreme Court order dated 26.02.2013. Ghaziabad Development Authority due to the pendency of the case before the Hon'ble Supreme Court has also allocated another alternative site of 16.24927 acres to respondent No. 4 vide letter dated 26.08.2013. (Annexure-B)

It has also been stated by the applicant in the rejoinder that the dumping yard constructed in thickly populated cluster is not in public interest. It is stated that the proposed solid waste management plant is bound to contaminate the underground water and the foul smell would effect the health of the residents in the vicinity of the proposed solid waste management plant site. Further it is stated that therefore, it is important that the site for SWMP be shifted from the present one to another, which would in no way tilt the balance against the concept of sustainable development as interests of the citizens who have constitutional right to clean environment must prevail over such arbitrary action of corporation. The applicants have stated that it is wrong to say that in compliance of the order of the High Court of Allahabad dated 30.08.2011 the work of construction of dumping yard in 14 acres of land in village Dundahera was at a fast speed. In fact only a boundary wall exists till date. It is also clear from order dated 26.04.2013 passed by the Hon'ble Supreme Court that the respondent No. 4 was allowed to raise the boundary wall only.

It has been wrongly stated that necessary construction material and apparatus required for disposal of garbage are being managed by functional institutional Jal Nigam through licensee M/s. A to Z now changed to Holofix Urban Infrastructure Pvt. Ltd. and on it the aid by the Government of India is being spent and thus several crores of rupees have been spent. It is wrongly stated that several crores have been spent. Further it is wrong to say that the respondent had started work of construction of dumping yard in village Dundahera and that 5.863 hectare of village chipiyana have been notified.

The contents of para 3(xiv) to (vi) are wrong. The condition and criteria laid down in counter affidavit are wrong, since the selection of site for proposed SWMP is itself illegal, unlawful and arbitrary. All the condition would apply only when the site selection is away from thickly populated area. The appointment of Dr. S.R. Maley as consultant for the plant in Ghaziabad, on behalf of M/s. Holofix Urban Infrastructure Pvt. Ltd., is illegal and wrong as the site selection for the proposed dumping yard is violative of Municipal Solid Waste (Management and Handling) Rules, 2000.

It is wrong to say that not only the resident of Crossing Republic but also Association are repeatedly taking steps to create hindrance in the establishment of dumping yard either in one way or the other. Since there are number of those builders, each of them have developed their own projects. The applicants are residing in one of those projects at Buland heights, along with other occupants.

It has been wrongly said that the dumping yard in question will take care of all the health and hygiene issues and that there is illegally raised construction of residents inside 500 meters. The applicant and other builders in the vicinity of the proposed dumping yard started construction after getting layout plan approved alongwith other necessary approvals. Thus there is no question of illegal construction. Moreover, at the time when these flats were constructed the use of the entire land was residential. After the use of land in Dundahera having changed in July 2005 from dumping yard to residential there could not have been any construction of the dumping yard. The application for grant of EC was received by SEIAA, only on 15.10.2008. There was no occasion to apply for EC at that time when the use of land was changed in Master Plan 2021 to residential and on that ground the UPPCB had cancelled the EC on 15.07.2008. The EC granted to respondent No. 4 in the year 2016 for SWMP is thus illegal.

It is incorrect to say that if the work relating to dumping yard is not allowed to be completed than the entire Ghaziabad city will suffer and public money invested in several crores would be futile. The applicant has submitted that no such expenditure has ever been incurred by respondent No. 4 because only a boundary wall had been constructed till now and exists around the proposed dumping site. Several crores could not have been spent for just constructing a boundary wall.

It is totally incorrect to say that the integrated township policy was under challenge from its inception and therefore the constructions made during the period are illegal and unauthorized. It is stated that many individuals had already been given possession. Presently 15,000 flats are existing and more than 10,000 families are residing in many multi storey flats. Many more flats are yet to be occupied. These flats are just adjoining to the proposed dumping yard. These constructions are in no way illegal and unauthorized as they had been carried out after approved layout plans.

It has been stated by the applicant that the application is within limitation. It has been stated that the applicant's sale deed were executed in July/September 2012 and they occupied the flat in October/November 2012. Within few months after occupying the flat the applicants came to know about the proposed dumping yard at the site in question. The applicants along with other occupants protested against the proposed dumping yard and thereafter collected all the necessary information to file the present case before the Tribunal.

U.P. Pollution Board, respondent No. 5 has filed a reply affidavit and the Regional Officer, on behalf of the Board, has deposed certain facts for consideration of the Tribunal and no para-wise reply has been filed.

It has been stated that the Central Government in exercise of powers conferred under Section 3, 6 and 25 of Environment (Protection) Act, 1986 has framed the Municipal Solid Waste (Management and Handling) Rules, 2000 (hereinafter referred to as the Rules) which were published in the Gazette of India on 03.10.2000. As per Sub Rule (2) of Rule (1) the said Rules came into force on the date of their publication in the official gazette i.e. on 03.10.2000. The said Rule (1) is being reproduced herein below for ready reference:-

"1. Short title and commencement.-(1) These rules may be called THE MUNICIPAL SOLID WASTE (MANAGEMENT AND HANDLING) RULES, 2000.

(2) Save as otherwise provided in these rules, they shall come into force on the date of their publication in the Official Gazette."

Under Rule 4 every Municipal Authority is responsible for implementation of the Rules and for any infrastructure development for collection, storage, segregation, transportation, processing and development of municipal solid waste. The said Rule is being reproduced herein below for ready reference:-

"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.

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."

Government of India vide letter dated 29/09/2004 has sanctioned a scheme for Solid Waste Management in 10 cities where air field are situated including Ghaziabad as Hindon base air field is situated in the said city. This project was 100% funded by Government of India.

Nagar Nigam, Ghaziabad vide letter dated 23.06.2003 applied for authorization as per provisions of the Rules, however the said application was rejected due to lack of sufficient information vide letter dated 21.07.2004. The Nagar Nigam, Ghaziabad again vide letter dated 22.07.2004 submitted the requisite information and requested the replying Respondent, U.P. Pollution Control Board to grant No Objection Certificate for establishing Municipal Solid Waste Management System. The Board vide its letter dated 11.08.2004 had issued conditional No Objection Certificate to Nagar Nigam, Ghaziabad for establishing municipal solid waste management system of 400 MT/day capacity on Plot No. 939, 941/2, 944, 946, 949, 951 and 953 in village Dundaheda, Ghaziabad and Plot No. 937/1 of village Chipiyana totaling to 47 acres.

Subsequently the user of the land in question was changed in July, 2005 in the Master Plan, 2021 for the city of Ghaziabad as 'Residential'.

As the user had been changed in the Master Plan hence the replying Respondent sent a letter dated 10.06.2008 to the Nagar Nigam, Ghaziabad to show cause as to why the conditional No Objection Certificate issued to it be not cancelled for non-compliance of the conditions imposed therein.

As the Nagar Nigam did not reply with the show-cause notice and the conditional No Objection Certificate was revoked vide letter dated 15.07.2008.

On 21.10.2009, the State Government in exercise of the powers under Section 13(2) of U.P. Urban Planning and Development Act, 1973 issued a notification thereby modifying the land use for disputed 14 acres of land in village Dundaheda, Ghaziabad from 'Residential' to 'Dumping Yard' (Solid Waste Disposal Site).

On 23.11.2009 the replying Respondent issued a No Objection Certificate to Nagar Nigam, Ghaziabad subject to the condition that it has to take environment clearance from the State Environment Impact Assessment Authority.

On the application submitted by Nagar Nigam, Ghaziabad for authorization under MSW Rules, 2000 the Board granted conditional authorization vide letter dated 01.01.2010 wherein a condition was imposed that Nagar Nigam has to take environment clearance as per EIA Notification dated 14.09.2006. The said authorization was for two years.

Accordingly, the Nagar Nigam had applied for environment clearance with the State authority and as per the procedure the replying Respondent had conducted the public hearing on 20.04.2010.

Nagar Nigam had also obtained NOC from Air Force Station, Hindon on 14.05.2010.

Thereafter, the State Level Environment Impact Assessment Authority granted environment clearance to Nagar Nigam, Ghaziabad vide letter dated 24.04.2013.

After the environment clearance, Nagar Nigam, Ghaziabad again applied for authorization and the Board had revived the earlier authorization granted on 01.01.2010 for three years vide letter dated 18.07.2013.

It has been submitted that in the city of Ghaziabad there is no specific site for disposal of solid waste management which is very necessary for implementation of the Rules. Hence the Nagar Nigam, Ghaziabad may be directed to take effective steps for implementation of the Rules and to develop the site.

On behalf of the Pollution Control Board it has been further deposed that a number of writ petitions, since the year 2009, had been filed before the Allahabad High Court on similar grounds and by various persons. All the writ petitions were heard together by the High Court and decided on 30.08.2011 whereby the Writ Petition No. 1836 of 2011; (Ram Bhool & Ors. Vs. State of U.P. & Ors.) was allowed. Consequently the Notification under Section 4 and 6 of the Land Acquisition Act was quashed, while other writ petitions were dismissed. Against the said judgment of the High Court, an SLP was filed by Ansal Properties and others which are pending before the Hon'ble Supreme Court.

A reply has also been filed by SEIAA, Respondent No. 6 wherein they have stated in respect of paras No. 1 to 9 that it needs no comment. With regard to para 10 and 11 it has been submitted that the application for Environmental Clearance for "Solid Waste Management Scheme, Dundahera, Ghaziabad" was received by SEIAA on 15/10/2008. The Terms of Reference regarding the project were communicated to the Project proponent through letter dated 12/03/2009. A Public hearing in the matter was conducted on 20/04/2010, under the Chairmanship of Mr. S.K. Srivastava, A.D.M. City, Ghaziabad. Final EIA/EMP report was submitted by the Project proponent to State Level Environment Impact Assessment Authority on 19/03/2013. The matter was discussed/appraised in SEAC meetings dated 22/03/2013, 02/04/2013 and 17/04/2013. The State Level Environment Impact Assessment Authority issued the environmental clearance for Solid Waste Management Scheme at Khasra Nos. 939, 941/2, 944, 946, 949, 951, 953, Village-Dundahera, District-Ghaziabad, U.P., through letter No. 167/Parya/SEAC/264/2008 dated 24/04/2013.

Regarding the issue of Environmental Impacts of the project on Air, Ground Water and Sanitation, it has been submitted that:

As per the proposal submitted by the Project proponent for Solid Waste Management Scheme at Dundahera, Ghaziabad, the project site is in the land bearing khasra Nos. 939, 941/2, 944, 946, 949, 951, 953 which encompasses an area of 14 acres and is located in Village Dundahera, Ghaziabad.

The Project proponents have proposed specifications for the MSW site and Environment Management Plan regarding various environmental impacts which are as follows:

Waste generation : 418 TPD

Total area available at Present: 14 acres

Area of land provided for landfill: 9.42 acres

Area for Compost plant (100 TPD), Green belt, office building & allied facilities: 4 acres

Area under Other activities: 0.58 Acres

The State Expert Appraisal Committee examined and discussed the project proposals in its meetings dated 22/03/2013, 25/03/2013, 02/04/2013 and 17/04/2013. The committee noted that the proposal adequately addresses the management of Air Pollution, Water Pollution, Odour and Noise. The committee discussed the details of project surroundings inclusive of the distances and directions from the periphery of the landfill site along with the proposals of green belt with 25 m. width in west direction and 20 m. width in SSW direction. The committee noted that provision of 30 feet high wall from two sides (side of the project in west direction and SSW direction) and a boundary wall of 1.8 m. height on the other two sides was proposed. The committee also discussed the calculations for effective buffer zone requirement in view of green belt provision as provided by the proponents.

The committee discussed the issues raised during the public hearing of the project, held on 20/04/2010 and subsequent representations received by Authority/Committee. The committee had also gone through the decision of Hon'ble High Court dated 30/08/2011 in writ petition No. 254/2009, M/s. Ansal Properties and Infrastructures Ltd. Vs State of U.P. The Committee noted that the identification of the land for MSW site was done by experts of HUDCO, Ministry of Urban Development and Poverty alleviation, Govt. of India; Hindon Air Force Station, Ghaziabad and U.P. Pollution Control Board in 2004. The committee observed that as per the Municipal Solid Wastes (Management and Handling) Rules, 2000, the landfill sites should be away from habitation clusters but it does not specify any distance. The committee also observed that the Municipal Commissioner, Ghaziabad through his letter dated 30/03/2013 has requested the Ghaziabad Development Authority to maintain a buffer zone of no-development around the Municipal Solid Waste Site at Dundahera. The committee deliberated that the Ghaziabad Development Authority should be directed to maintain a buffer zone of no-development around the landfill site and should be incorporated in the town planning department's land use plans. The Committee also deliberated, in view of decision of Hon'ble High Court dated 30/08/2011 and management plans proposed by the proponents for MSW project that the proposed Municipal Solid Waste project is a public interest project and is one of the foremost essential services of Urban Development. The project also relates to national security in view of ensuring the air safety of Hindon air base.

In view of the proposal, management plans and the safety measures proposed for the Sanitary Landfill and Composting facility at Village-Dundahera, Ghaziabad at Khasra Nos. 939, 941/2, 944, 946, 949, 951, 953, the committee recommended grant of Environmental Clearance for the above said proposal along with stipulations of conditions on the project to take measures to protect the environment from any possible pollution arising from the activities of the project. The State Level Environment Impact Assessment Authority (in its meeting held on 22/04/2013) agreed with the recommendations of Committee to grant Environmental Clearance for Sanitary Landfill and Composting facility at Village-Dundahera, Ghaziabad. Consequently, Environmental Clearance had been issued vide letter No. 167/Parya/SEAC/364/2008 dated 24/04/2013.

In view of the above, it has been submitted by Respondent No. 6 that, it is clear that the SEIAA/SEAC has thoroughly examined the proposals of "Solid Waste Management Scheme, Dundahera, Ghaziabad, U.P." as the above activities had been proposed along with their impacts on air, water and surrounding areas as well as corresponding environmental management plan. The Authority had also stipulated necessary conditions to ensure to prevent and mitigate any negative environmental impacts of the project.

It is also submitted that as per Municipal Solid Waste (Management and Handling) Rules, 2000 every Municipal Authority shall, within its territorial area, 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 Waste.

Ghaziabad Development Authority, Respondent No. 8 has filed a reply to the instant case. While considering the para wise contents of the appeal it has been submitted that para 1 of the application arise out of the personal knowledge and understanding of the applicant and hence warrants no specific reply. It has also been averred in the reply that the contents of para 2 of the appeal are not related to the respondent authority and hence need no specific reply.

In regard to the contents of para 3, 4, 5, 6, 7 and 8 it has been submitted that they do not relate to respondent Authority and hence need no specific reply. In reply to contents of para 9 it is stated that the same pertains to the incorporated sanctity of the respondent Authority and thereby admitted. However, in respect of para 10 it has been submitted that the contents of the same are not related to the respondent Authority and hence need no specific reply. It has been averred in the reply by respondent No. 8 that contents of para 11 and 12 of the appeal are based on facts which are in the knowledge of the appellant for which he may be put to strict proof of the same and hence need not specific reply.

It has been stated in the reply that contents of para 12(a) have been dealt with in para 6 to 7 herein above and therefore admitted. The contents of para 12(b) have been admitted and for further clarification of the same the paras herein above may be read alongwith it. As regards to the contents of para 12(c) it has been stated that they are not related to the respondent Authority and hence need no specific reply. It is stated for contents of para 12(d) that they are partially admitted and the extent to which it is denied is based upon the facts that the respondent Authority had only passed the layout plan for 320 acres of land and not 400 acres. The contents of para 12(e) of the appeal have been admitted. The contents of para 12(f) have been denied to the extent and in the manner it has been presented. It has been submitted that in the area only two integrated townships are allowed for which the total area is 500 acres and in accordance with the sanction scheme for housing, total of approximately 26000 flats/plots have been proposed.

It is stated that for the contents of para 12(g), (h), (j), (k), (l) and (m) are not related to the respondent Authority and hence need no specific reply. The contents of para 12(n) are only partially admitted in terms of all the paras mentioned herein above. It is also stated that para 12(o), (p), (q), (r), (s), (t) and (u) are not related to the respondent Authority hence need no specific reply. In respect of all contents in para (a) to (n) it is stated that they are the grounds for application and reply as given in the aforementioned paras may be read as the reply to the grounds.

It has also been averred in the reply that filing of special leave petition by Crossings Republic flat owner which has been connected with the SLP of Ansal properties, and are pending adjudication before the Supreme Court, have not been mentioned by the applicants in the present case. The said SLPs have been filed against the order of the Allahabad High Court dated 30.08.2011. It has also been submitted that in furtherance of the direction given by Hon'ble Supreme Court, in the public interest litigation filed by Almitra H. Patel, it was ordered to establish solid waste management sewerage and drainage in the cities where the Air Force Station were situated. The Ministry of Urban Development of Central Government was to provide with the finance. The city of Ghaziabad was also included in the said scheme.

The Municipal Waste Management Rules were notified on 20th September, 2000 by the Central Environment and Forests Ministry. Thereafter, a plan was prepared and experts of HUDCO were to select the site for disposal of urban waste by scientific means. The preparation of composite plant and land filling is the main part of the scheme. A joint inspection was carried by the Deputy Advisor, Associated with the Ministry of Urban Development along with experts of HUDCO and Regional Manager U.P. Pollution Control Board. An area of land measuring 14 acres was identified for the purpose. The land use was changed by Ghaziabad Development Authority and it was made available by Nagar Nigam to the U.P. Jal Nigam who had constructed a boundary wall around it.

It has also been submitted that the Ghaziabad Master Plan 2021 came into operation, after approval of the State Government and was enforced from 14th July, 2005. In the said Master Plan the land use of the land in question was residential. The State Government, under its housing policy, to resolve the shortage of houses available to the public at large, notified the integrated township policy on 21.05.2005, by virtue of which it was proposed that land acquisition and development for the purpose of housing scheme shall be done with the help of private investment. Under the policy of 2005 the Committee constituted by the State Government proposed for license to be granted to M/s. Ansal Properties for the development of 152.89 acres of land and M/s. Crossings Infrastructure for development of 360 acres of land which included 14 acres on which SWMP was proposed to be built. It was only after the approval of the Board that the licenses were granted on 29th May, 2006, to both the developers.

Thereafter, on the recommendation of Nagar Nigam the State Government changed the land use of 14 acres of land from residential to dumping yard, vide notification dated 21.10.2009.

The applicants, in order to counter the replies filed by the respective respondents have filed separate rejoinders. On perusal of the rejoinders it is revealed that the applicants have reiterated the facts and circumstances as given in the application so as to deny the averments made in the replies filed by the respondents. It has been submitted in the rejoinder that the land in question was initially agriculture. Thereafter the State of Uttar Pradesh had declared a housing policy on 21st May, 2005. Subsequent to it Master Plan for Ghaziabad was finalized on 14th July, 2005, wherein the Commissioner Municipality was a member in the committee for the purpose, the land use of the site marked for dumping yard had been changed to residential. Accordingly the NOC granted by UPPCB was cancelled on 15.07.2008. It has been submitted in the rejoinders that the applicants were neither party nor had any knowledge about the litigations before the Hon'ble High Court of Allahabad and Hon'ble Supreme Court of India. Further, it has been submitted that the applicants had occupied flats in the month of November 2012 and only thereafter they came to know about the site for dumping solid municipal waste in the neighborhood of their buildings.

The applicant had also reiterated other facts relating to the site for dumping of solid municipal waste and the events which had taken place since the year 2013. It has been submitted that no construction whatsoever had been made on the site with regard to SMW plant and only boundary wall had been constructed and that too after the orders of the Hon'ble Supreme Court. The respondents had not, at any point of time taken effective steps since the year 2004 to bring up the plant for treating the solid municipal waste. Much housing development, as aforesaid, had taken place in the intervening period, so much so, that the State Government had declared the housing policy, the Master Plan had been finalized and in furtherance of the said policy the State Government had permitted development of housing by private investors. On completion of the private houses they have come to be inhabited by large number of families. It was thereafter that suddenly the respondent SEIAA took up the application, which was filed in October 2008, in the month of March 2013 and within a month i.e. April 2013 completed the process and issued the environmental clearance on 24.04.2013.

Before proceeding further on the merits of the case it would be appropriate to consider the question of limitation as raised by the respondents.

It was on 02.12.2015 that the counsel appearing for the Project proponent submitted that the appeal as conceived is time barred and exception on this ground needs to be heard as a primary exception. The matter was then kept on 12.01.2016 and the interim order was continued. Ultimately the matter was finally heard on 26.05.2016.

As this is an appeal which has statutory limitation for filing of the same, the respondent has taken the objection of limitation. So according to the respondents this appeal is barred by time. When we go in retrospect, we find that initially an application under Section 14, 15 and 18 had been filed by the applicant on 13th September, 2013. One of the prayers (f) made therein was for cancellation of EC, if granted. This was so done as the applicant was not aware about granting of any Environmental clearance. As a matter of fact, one of the residents of the colony, in which the applicant was residing, had made a query under the RTI on 24th April, 2012. The said query was replied to by the UPPCB (R-5) on 14.10.2012 with the specific averment to point No. 6 that there was no environment approval/clearance for establishment of solid waste management plant at Dhundahera, Ghaziabad. Similarly, another query was raised under RTI on 1st May 2012. A reply came to point No. 11 from UPPCB on 24.09.2012, stating categorically that no environment clearance/approval has been given in favour of proposed MSWP at village Dundahera, Ghaziabad. In reply to point No. 13 also, it was stated by UPPCB that no environment clearance/approval has been given in favour of the proposed MSWP at village Dundahera. (part of annexure A-7 at page 139/140 of the paper book). Though EC was granted on 24th April, 2013 but the same was not in the knowledge of the appellants and that is why, on filing of the original application before the Tribunal in the month of September 2013 the aforesaid prayer for quashing EC, if granted, was specifically made. It was only on filing of the reply by Nagar Nigam Ghaziabad respondent No. 4 on 17.01.2014 that the fact about issuance of EC came to be known when a copy of the same was also filed. (Page 535 of the paper book). It is pertinent to mention here that though in the said reply the respondent No. 4 had raised preliminary submissions whereby certain objections were raised but not in respect of maintainability of the original application on the ground that Environmental clearance had been granted in the present case, which is appealable and as such the original application, filed by the applicant, is not maintainable. Similarly, no objection was raised in respect of limitation on the ground that the Environmental clearance was granted on 24th April, 2013 and the limitation prescribed for preferring an appeal 30 days. In the said reply, the respondent had also replied to the para in the application relating to limitation. But even there, no objection in relation to limitation has been raised on the ground that the applicant should have challenged Environmental clearance, by way of appeal, within 30 days. On the contrary, respondent has stated that the original application is not maintainable because it has been filed beyond six months from the date of cause of action.

Thereafter the counsel for the applicant sought time to file rejoinder but in the meantime Nagar Nigam, Ghaziabad filed an application (39/40) for vacating of stay order granted by the Tribunal. Stay application was ordered to be taken up for hearing on the next date and the interim order already passed was to continue. Again when AAG for U.P. Government sought time for compliance of the order dated 20.09.2013, the matter was adjourned and the interim order already passed was to be continued in operation. The counsel for the applicant was permitted to file reply, if any, to the application for vacating the stay, by the next date of hearing. Subsequently, the Tribunal took note of the fact that the earlier order dated 20.09.2013 had not been complied with despite of the lapse of six months and on their request further time was granted, by making it clear that no further time will be granted. Interim order dated 20.09.2013 was ordered to continue to be in operation.

In response to the earlier order the Secretary Urban Development Department of State of U.P. appeared before the Tribunal and explained the various steps taken by the Government of U.P. in respect of solid waste management in the entire State. He had also named the cities where solid waste management projects are in operation or at advanced stage. It was also ordered that the State Government was to prepare solid waste management scheme in consultation with the various departments. The Government of India was to give all assistance fully to development in respect of solid waste management scheme. Similarly, the Ministry, Urban Development (R-2) was also to give all necessary assistance in respect of completion of the scheme. On 15th July 2014 the project proponent was directed to file affidavit and a complete project report showing the special measures which would be taken to ensure that on plant becoming operational no pollution would result in the residential area. The Commissioner of the Corporation was called before the Tribunal with the relevant records. The counsel for Nagar Nigam respondent No. 4 had then sought time to file affidavit and complete project report as directed earlier. The Tribunal then granted liberty to file objections, if any, in 10 days thereafter. Subsequently, further time was sought by the counsel for respondent No. 4.

The respondent No. 4 had then filed an affidavit along with certain documents including the copy of the Environmental clearance dated 24.04.2013 issued by SEIAA. The applicants thereafter filed reply to the affidavit filed by the respondent. The applicant had initially made brief submissions; specific grounds for objections and then filed para wise reply to the aforesaid affidavit. The matter was heard by the Tribunal on 29th October 2014 and on the request of the counsel for respondent No. 4 and 9 the case was adjourned to 30th October 2014. On the next date the counsel for the parties were heard and the case was treated as part heard and remaining arguments were to be continued on the next day i.e. 31st October 2014.

On 31st October 2014 the Tribunal had heard the learned counsel for respondent No. 4 at length and directed them to file an affidavit as to how the various terms and conditions contemplated under EC given by SEIAA are implementable. The State Pollution Control Board which is said to have filed an affidavit before the Hon'ble Supreme Court to the effect that the buffer zone of 500 meters will be maintained, were also to file an affidavit and explain under what circumstances such affidavit was filed as well as the name of the officer who had filed it. Such particulars and affidavits were to be filed within one week. On 18th November 2014 the counsel for Nagar Nigam respondent No. 4 sought more time for the aforesaid purpose. Again on 19.12.2014 the counsel for Nagar Nigam respondent No. 4 submitted that he would soon comply with the earlier order dated 31.10.2014. Accordingly for filing such affidavit the matter was adjourned.

On 17th August 2015 the Tribunal passed the following order:

"Taking a total view of the application before us, we find that essentially it is a challenge to the Environment Clearance granted to the MSW Plant at Dundahera dated 24.04.2013. Only course to seek redressal of grievances flowing out of such EC was to prefer an appeal against the EC. However, the applicant has approached this Tribunal with an application. Now, the applicant seeks permission to convert this application into an appeal challenging the said EC. We, therefore, grant permission to convert this application into an appeal throwing challenge to the EC dated 24.04.2013 granted to the MSW Plant at Dundahera.

Necessary amendments be made in the application and amended application in form of an appeal be placed on record.

We do not intend, however to disturb the interim orders which have been passed in the present application in the interest of the justice. Let the amended copy of the application in form of an appeal be placed on record within a week. Copies be served to all the contending respondents.

Liberty granted to file objections to the appeal within two weeks thereafter."

The appellants had filed an amended application/appeal on 24th August, 2015. The amendment made in the application were adding of Section 16 of NGT Act 2010 in the title page and adding of para (V) to (Y) giving out certain facts relating to the matter. The applicant had also added grounds (O) to (Z). Certain changes were made in the para relating to limitation. In the last prayer (F) was modified and (G) was added so as to challenge the environmental clearance dated 24.04.2013. Later, on 5th October, 2015 the following order was:

"Learned Counsel appearing for the applicant submits that there has been no annexures to the amended application and the annexures to the previous application shall be treated as the annexures to the amended application in form of an appeal.

Grievance is made about supply of the amended copies of the applications. At this stage, amended copies of the application in form of an appeal have been furnished to learned Counsel appearing for the respondents. Two weeks time is granted to file replies. Copies of the replies be furnished to the applicant who may file rejoinder thereto within a week thereafter."

Again the appeal was taken up by the Tribunal on 4th November, 2015 and following orders were passed:

"Time sought for filing replies. Two weeks time is granted. Advance copies of the replies be furnished to the applicant who may file rejoinder thereto within a week thereafter. The Respondents may note that this appeal has come into being as a result conversion of the O.A. into an appeal. We are informed that the Original Application was replied by all the Respondents. If no replies are placed on record, we assume that the replies filed by in the O.A. are the replies for the present appeal so far as the factual contents are concerned. Interim orders to continue."

It is noteworthy that the respondents had not filed any reply to the appeal. Therefore no rebuttal to the factual averments regarding limitation have come forth from the side of the respondents.

Further it may be noted that the Act of 2010, under Section 19, provides the procedure and power of the Tribunal and the provisions are as under:

Procedure and powers of Tribunal.-(1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice.

2) Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure.

(4) The Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-

(a) .............

(b) ............

(c) ............

(d) ...........

(e) ...........

(f) ............

(g) ...........

(h) ...........

(i) ..........

(J) ..........

(k) any other matter which may be prescribed.

In other words the statute provides that the Tribunal shall not be bound by the procedure laid down by the code of civil procedure 1908 but shall be guided by the principle of natural justice. Besides, subject to the provisions of the Act 2010, the Tribunal shall have powers to regulate its own procedure. Sub Section 4 of Section 19 enumerates certain matters where the Tribunal has, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under code of civil procedure 1908, while trying a suit. However, Clause (k) of Sub Section 4 Section 19 further provides for any other matter which may be prescribed.

In the circumstances that the applicant was not aware about the issuance of Environmental clearance and that is why he so pleaded in the application, including in the prayer clause where it was stated that, in case Environmental clearance has been granted, the same be quashed and the respondent, particularly, the Municipal counsel, Ghaziabad had for the first time placed the Environmental clearance on record along with their reply, had not raised any objection to the effect that original application does not lie before the Tribunal or that the prescribed limitation to challenge the same had also expired, such argument of respondent cannot be sustained. Such an objection was raised for the first time. On 2nd December, 2015. Moreover, the Tribunal after considering all the circumstances including the facts of the case, the proceedings before it as well as the earlier orders passed, thought it proper to convert the original application to an appeal, vide its order dated 17th August, 2015. Even at that juncture, neither any objection with regard to limitation in respect of filing of the appeal was taken, nor liberty was sought to do so at any subsequent point of time. Therefore, objection raised by the respondents at the fag end that appeal is time barred is neither justified nor reasonable. In fact, when objection was raised on 2nd December, 2015, when final hearing of the matter had already commenced, as it is apparent from the proceedings dated 25th February, 2014, 30th October, 2014 etc.

Keeping in view the aforesaid facts and circumstances of the case; the proceedings which have been carried on before the Tribunal; the procedure and powers of the Tribunal under Act of 2010 and the relevant principles of law, we have no hesitation in holding that amendment in the application which was allowed on 17.08.2015 relates back to the date of institution of the original application i.e. 13.09.2013.

The question which now remains for our consideration is that the impugned Environmental clearance which was issued on 24.04.2013 and the application/appeal challenging the same, was filed on 13.09.2013, is barred by limitation or not. Any person aggrieved of an order may within a period of 30 days, from the date on which the order is communicated to him prefers an appeal to the Tribunal, as per the provisions of Section 16 of the Act of 2010. However, the Tribunal may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding 60 days. In other words an appeal has to be filed within 90 days, under all circumstances. As mentioned above the impugned order of EC was issued on 24.04.2013 and the application/appeal was filed on 13.09.2013.

The only question now to be considered is as to when the applicants/appellants were communicated or it came to their knowledge about the passing of the order under challenge in the present case. It is a common case between the parties that the impugned order was never sent or served to the appellants. Therefore, it is to be considered as to whether the issuance of environmental clearance had come to their knowledge at any earlier point of time. It is imperative that after issuance of EC in favour of a Project proponent the same has to be given a wide publicity under E.C. Regulation, 2006 by prominently advertising it at least in two local newspapers of the district where the project is located and in addition, this shall also be displayed in the project proponent's website. The copies of the E.C. shall be submitted to the Heads of the Local Bodies, Panchayats and Municipal Bodies in addition to the relevant officers of the Govt, who in turn has to display the same for 30 days from the date of receipt. But nothing in this light was done in the present case by the project proponent.

On consideration of all the facts of the case and on perusal of material on record it is revealed that at the time of filing of original application the applicants/appellants were not aware of the EC dated 24.04.2013 granted by respondent No. 6 in favour of respondent No. 4. This is apparent from the fact that the appellants had prayed to cancel EC, if any, granted by State Level Environment Impact Assessment Authority. Further in response to the queries raised under RTI on 24th April 2012 respondent No. 5 had stated "No environmental clearance/approval has been given in favour of proposed plant at village Dundahera". It was only during the course of proceeding before the Tribunal that respondent No. 4 had for the first time filed the EC. Therefore the Tribunal had on 15.07.2014 directed respondent No. 4 to file an affidavit and complete project report showing as to what special measures it would be taking to ensure that if the plant is permitted to operate, it will result in no pollution in the concerned residential area. In pursuance thereof respondent No. 4 filed an affidavit along with documents including Form 1 filed by them before respondent No. 6 seeking environmental clearance.

Thereafter the applicants/appellants filed their reply/objection, challenging the grounds on which environmental clearance dated 24.04.2013 was granted to Nagar Nigam, Ghaziabad. It is significant to note here that the said EC had not been uploaded on the website. The respondents had failed to place on record any material to the contrary so as to establish that the applicants were communicated or had knowledge about the impugned EC. Therefore, we are of the considered opinion that the fact with regard to issuance of the EC dated 24.04.2013 was neither communicated nor was it in the knowledge of the applicants/appellants. It is prima facie established that it was only during the proceeding of the present case that the appellants came to know about the issuance of EC to Nagar Nigam, respondent No. 4. Immediately thereafter a request was made and the Tribunal granted permission to convert the application into an appeal. Thus the present amended application/appeal is within limitation.

Now coming to the merits of the case, the appellant has raised the primary contentions that environment clearance granted on 24.04.2013 is liable to be cancelled as it is not in conformity with the Municipal Solid Waste (Management and Handling) Rules 2000 and Solid Waste Management Manual. Further, it has been submitted that the proposed municipal solid waste plant at the site village Dundahera cannot comply with the Rules of 2000 and the Manual. It has also been submitted that the construction of the Municipal Solid Waste plant cannot be made at the proposed site in village Dundahera. The appellant has also submitted that in case of establishment of the Municipal Solid Waste plant at the proposed site in village Dundahera would cause environmental hazardous/impact on the people residing in the vicinity. In order to appreciate the contentions raised by the respective parties, it would be appropriate to take up these issues, hereunder, one by one.

In a similar case of Reyons Enlighting Humanity Vs. MoEF & Ors (OA. No. 86/2013) decided on 18th July, 2013, which relates to Municipal Solid Waste at Bareilly (U.P), this Tribunal had observed that:

"18. The project site is one of the most significant facets of any EC matter and before issuance of NOC for establishment of any project, more particularly a MSWM project, it has to be first seen that it does not lead to any environmental damage or public nuisance."

In case of MSW plant more stringent standards of environmental protection are to be met so that once such plant starts functioning, there is no environmental degradation particularly when there are a large number of residential and institutional areas situated in the vicinity of the project.

Whether the EC granted by SEIAA, U.P. on 24.04.2013 is liable to be cancelled as being not in conformity with the Municipal Solid Waste (Management and Handling) Rules 2000 and Solid Waste Management Manual?

The public notice dated 19.12.2008 issued by the Ghaziabad Development Authority (DanikJagran) (Pg 188) in respect of change in the land use from residential to dump yard was in respect of Khasra Nos. 937/1, 937/2, 939, 941/2, 944, 946, 949, 951, 953 and 938. The total area of this land was 14 acres. Whereas the Environment clearance was granted only for Khasra Nos. 939, 941/2, 944, 946, 949, 951, 953. The total area comes to 2.85 acres. In so far as remaining Khasra No. 937/1 (0.625 acres), 937/2 (9.086 acres) and 938 (1.437 acres) are concerned the total area of the land of these Khasra Nos. comes to 11.15 acres. In other words the Environmental Clearance for solid waste management plant in Dundahera is only for land measuring 2.85 acres which can neither be sufficient for dump yard nor for a plant in respect of solid waste management. According to Clause 7 of Schedule III of the Rules of 2000 a land fill site should be enough so as to last for 20-25 years but the Environmental clearance of 24.04.2013 clearly specifies that it is intended to be granted for 3 years.

Clause 17.4.1(e) of Chapter xvii of the Manual clearly gives out that the land-fill site should be at a distance of 500 meters from the notified habitated area. No-development buffer zone is to be after land fill location is finalized. But a perusal of Environmental clearance in the instant case [(pg 1136) Clause 10 (point No. 5)] provides only for green belt a garden area. The green belt is to be densely planted, tall growing trees are to be developed around the plant. This cannot be achieved as a green belt takes about 8 to 10 years to develop whereas the Environmental clearance has been granted for a period of 3 years. Furthermore the Environmental clearance provides for a green belt of 25 and 20 meters towards front face (West) of the site and the left face for the site (East), back face six meters and the fourth side would be 6 meters. Besides, the Environmental clearance in the instant case provides for noise management plant (pg 1139) but point 4 under said plan provides only for 30 feet high wall from two sides i.e. in the West direction and South West direction and 1.8 meters high boundary wall is to be provided on the other two sides of the project periphery. As mentioned earlier, the Municipal Corporation, Ghaziabad in its affidavit has itself deposed that in order to overcome the shortfall of 500 meters of buffer zone it has taken other measures.

Similarly under the category of specific conditions in the Environmental clearance dated 24.04.2013 it has been given that the Ghaziabad Development Authority shall maintain a buffer zone of no-development around the land-fill site which will be incorporated in the Town Planning Department's land use plans. It further mentions that the buffer area should be suitable for planting of vegetation as a visual screen and to assist in control of litter, dust and odour. All this cannot be achieved in the instant case because of the massive construction which had already been allowed by Ghaziabad Development Authority in furtherance of the State housing policy, which had followed a national housing policy. Many photographs have been placed on record to show the large extent of construction which has already been made on the land, adjacent to the site for the plant, (pages 610-614, 637, 1150 and 1151).

Clause 17.4.1(k) of the Manual refers to the water supply well which prohibits that no land fill should be constructed within 500 meters of any water supply well. The Environmental clearance in the instant case, has completely ignored this aspect of the matter which was essential to be taken care of. In face of the fact that in the area in question Nagar Nigam does not supply water to any of the buildings and the water for the residents come from boring, this would definitely contaminate the water table in case the MSW plant is brought up in the site in question.

Under Clause 17.8.4.6 of the Manual it has been provided that there should be prevention of pollution during the operations. One such prevention is with regard to the traffic, as heavy lorry traffic can give rise to nuisance, damage to road surface, verges and routing problem. In this respect guideline has been given such as:

a) routing to avoid residential area,

b) using one-way routes to avoid traffic conflict in narrow roads,

c) carrying out road improvements, for example strengthening or widening roads, improved provision of footpaths, improvement of sight lines, provision of passing places, provision of new roads,

d) limiting the number of vehicle movements,

e) Restrictions on traffic movement hours which are staggered with respect to peak traffic hours.

According to Clause 8 of Schedule III of the Rules of 2000, the land-fill site shall be away from habitation clusters, forest areas, water bodies etc. In this regard it is important to note here that in the impugned Environmental clearance reliance has been placed on the Municipal Solid Waste (Management and Handling) Rules 2000 that land-fill site should be away from building clusters, but it has been mentioned that the said Rule does not specify in distance (page 9 of the EC). The committee, issuing EC, has ignored the provision Clause 17.4.1(E) which provides that the land fill site should be at least 500 meters from a notified habitated area. It is rather strange that under the heading of general conditions of the EC at point 8, reference has been made to the Manual on Municipal Waste Management published by the Ministry of Urban Development and Municipal Corporation, while mentioning about the post closure arrangement of the facility which are to be made as per Rule of 2000 and the Manual.

Similarly under the specific conditions enumerated in the EC, it has been given that Ghaziabad Development Authority shall maintain a buffer zone of no-development around land-fill site which will be incorporated in the Town Planning Department's land use plans. The buffer area should be suitable for planning of vegetation as a visual screen and to assist in control of litter, dust and odour. Under Clause 9 of Schedule III a buffer zone of no-development shall be maintained around landfill site and shall be incorporated in the Town Planning Department's land-use plans. In the impugned Environmental Clearance no area has been specified for the buffer zone whereas Clause 17.4.1 of the Manual provides that a landfill site should be at least 500 meters from a notified habituated area. The aforesaid facts and circumstances clearly goes to show that the Environmental Clearance dated 24.04.2013 is not at all in conformity with the Municipal Solid Waste (Management and Handling) Rules and Solid Waste Management Manual and is liable to be cancelled for the reasons given above. The EC dated 24.04.2013 is to be cancelled as not being in conformity with the Rules of 2000 and the Manual. Accordingly the issue is answered in the affirmative.

Whether the proposed Municipal Solid Waste Plant at Dundahera can comply with the Municipal Solid Waste (Management and Handling) Rules 2000 and Solid Waste Management Manual?

Any municipal solid waste plant proposed to be established in an area has to comply with the Municipal Solid Waste (Management and Handling) Rules 2000 (hereafter Rule of 2000) and Solid Waste Management Manual. The said rules and manual are to be strictly adhered to and are mandatory in nature. Any proposal which is not in consonance with the rules and the manual, the establishment of such plants cannot be permitted as being illegal and in case of construction of the same, without abiding by the said provisions, would make Municipal solid waste plant liable to be stopped and removed to some other place.

Under Schedule III which has been appended to the Rules of 2000 is in consonance with Rule 6(1) and (3), 7(2) and lays down the specifications for landfill sites. Such specifications are regarding site selection, facilities at the site, specification for land filling, pollution prevention, water quality monitoring, ambient air quality monitoring, and plantation at landfill site, enclosure of landfill site and Post Care and special provisions for hilly areas.

Clause 7 of Schedule III lays down that a land-fill site shall be large enough to last for 20-25 years. In the instant case the Environment Clearance dated 24.04.2013 issued by State Level Environment Impact Assessment Authority, U.P., to the Project proponent, has the land-fill site for active period of 3 years only. Further under Clause 8 of the said Schedule the landfill site should be away from habitation clusters, forest areas, water bodies' monuments, National Parks, Wetlands and places of important cultural, historical or religious interest. On perusal of the record, including the pleadings as well as documents filed by the parties, it is revealed that after the land user became residential, the layouts of the Builders were approved by Ghaziabad Development Authority. Thereafter all residential complexes in Dundahera village were developed. The proposed solid waste management plant is surrounded by various multi storey flats of Amarpali Group, Assotech Group, Prateek Group, Exotica, Skytech buildings which comprises of 18 storeys and above. Each of these flats are just adjoining to the proposed dumping land. Behind these buildings, there are other flats such as Buland Heights, Arihant, Crossings Republic, Gardenia, Pancheel, Proview, Golden Heights, Cosmos, Dreamland, Supertech, Paramount, Gaur, Ajnara, Saviour etc. These flats are also multi storeyed comprising of 18 storeys and above. All these buildings are part of Crossings Republic Township. The Sushant city's project is adjacent to the proposed solid waste management plant. The photograph on record (Pg 610-614) shows the massive construction in the area, adjacent to the plant. Likewise the Google images shows a massive construction, a copy of which is on record (Pg 637).

Chipiyana village is on the North side and Shaberi village is on the East side. Therefore, there is all round construction having taken place and thick population is already residing around the proposed SWM plant. There is no scope of buffer zone to be maintained and to be incorporated in the Town Planning Department, land use plans. There are in all more than 15,000 flats and 10,000 or more families are residing in the aforesaid housing complexes. There is no dispute between the parties regarding the fact that the complexes are not only in existence but have been occupied and families are residing.

Clause 9 of Schedule III provides that a buffer zone of no-development shall be maintained around landfill site and shall be incorporated in the Town Planning Department's land-use plans. But in the present case, on one side of the land fill site is applicant's Crossings Republic Township which is a consortium of several developers and on the Western side is Ansal Sushant City. On the Northern side is the village Chipiyana having a population of more than 70,000 people and on the Eastern side is Shaberi village with a population of about 25,000 people. Thus in all, more than one lakh people are residing around the site for proposed Solid waste Management plant. As on date many more persons must have come and occupied those flats. A layout plan of Dundahera village is on record (Annexure A-2).

Clause 13 of Schedule III provides that the approach and other internal roads for free movement of vehicles and other machinery shall exist at the landfill site. In reply filed by U.P. Pollution Control Board on 24th September 2012 in response to RTI (Pg No. 42) it has been mentioned at point No. 26 in Dundahera the distance of nearby population from the place of proposed municipal solid waste disposal is around 15 meters in West direction and in the North direction there is Sushant city project adjacent to it. In such a situation it is not possible to fulfill the requirement under this clause so as to have an approach and other internal roads for free movement of vehicles and other machinery at the land-fill site.

Clause 17.4.1 of Chapter xvii of Solid Waste Management Manual (hereafter referred to as Manual) provides that a locational criteria may be specified by a regulatory agency i.e. (Pollution Control Board). In the absence of regulatory requirements, the criteria are suggested therein. If it is absolutely essential to site a land fill within a restricted zone then appropriate design measures are to be adopted and permission from the regulatory agency should be sought. Clause 17.4.1 of the Manual gives about habitation. According to it a land fill should be at least 500 meters from a notified habitated area. A zone of 500 meters around a land fill boundary should be declared a No-development buffer zone, after the land fill location is finalized. In the affidavit filed on behalf of Nagar Nigam Ghaziabad on 24.02.2014, in compliance of the orders dated 31.10.2014 and 22.01.2015, it has been mentioned in para 7 that "the aforesaid measures are a step of Ghaziabad Nagar Nigam in order to try and overcome the shortfall of the 500 meters of buffer zone--" (Pg 1271). This is rather an acceptance by Nagar Nigam Ghaziabad of the fact that there is a short fall in 500 meters of buffer zone around the land fill site.

Furthermore it has been deposed in the affidavit, filed on 24th February 2014, that "special green belt of 25 meters--". The compilation of project report dated 19.03.2013/02.04.2013 includes a document (Annexure-C at page 1076) which mentions as under:

Width of green belt as per revised layout will be as follows:

The aforesaid facts reveals that it is rather an admission on the part of Nagar Nigam that 500 meters buffer zone is not available around the plant.

Similarly Clause (K) of 17.4.1 of Solid Waste Management Manual prescribes for water supply well. According to which no land fill should be constructed within 500 meters of any water supply well. It has been strongly suggested that this locational restriction be abided by, at least for down gradient wells. Permission from the regulatory agency may be needed if a land fill is to be cited within a restricted area. It is pertinent to mention here that Nagar Nigam Ghaziabad does not supply water to any of the housing complexes. The water is being supplied to the habitants of the area through boring. Therefore, the proposed MSW Plant in that area would definitely contaminate the water table. Therefore the issue has to be answered in the negative.

It is further observed in the case of Reyons Englights Humanity (Supra) that:

"The argument advanced on behalf of Respondent No. 4 was that the educational institutions like Invertis University and other institutions had come up during the operation of the NOC issued in favour of Respondent No. 4 for establishment and operation of the plant in question. Furthermore, some land area belonging to the Corporation had been unauthorisedly occupied by the University. These submissions do not impress us at all, primarily for the reason that right from 2005 till 2010-11, no work had been executed in relation to the plant in question. In the meanwhile, after obtaining sanction from the requisite authorities, the Invertis University and other buildings had come up. There had been rapid increase in the population density of the surrounding villages and there were admittedly water bodies around the site in question. It was expected of Respondent No. 3 to seriously ponder over the project, do a technical analysis and examine the impact of the plant in question on the environment. Without performing their basic duty in accordance with the rules, the site had been approved, which approval we are unable to sustain.

The establishment and construction of the plant in question appears to have been carried out in blatant violation of the orders of the High Court and Respondent No. 3. The High Court as well as Respondent No. 3 had categorically noticed that the NOC had lapsed as on 2nd January, 2010 and the same was not renewed, and therefore, no construction activity could be carried out. The High Court, in its earlier orders had stated that even the trenching ground from the site in question should be shifted to an appropriate site. Therefore, the Tribunal cannot permit Respondent No. 4 to take advantage of its own wrong and claim equity on the ground that it has spent some money in raising the plant in question. The amount which was spent in 2006 and earlier on construction of a drain had nothing to do with the MSWM project in question. The activity on which money was spent is not related to the MSWM project activity. In fact the tender itself was invited in 2008 and agreement with the executing agency was amended in 2011. For these reasons of serious consequences, we are of the considered view that Respondents cannot be permitted to claim benefit of their own wrong doings."

Whether the proposed municipal solid waste plant can be constructed at village Dundahera, Ghaziabad?

While granting no objection certificate by letter dated 12.08.2004 U.P. Pollution Control Board had laid down, on the basis of recommendation received from Regional Officer Ghaziabad, that the city solid waste processing facility is to be on the proposed site of the land in Dundahera at Village Chipayana and a total area was to be 47 acres. Within the said land 14 acres was in village Dundahera and 33 acres in village Chipayana. Subsequently when the Department of Housing and Urban Planning, Government of U.P. issued the notification on 21.10.2009 for changing land use from residential to dump yard had passed the same only for 14 acres of land in village Dundahera. In so far as the land (33 acres) at village Chipayana is concerned no such notification had been issued at that time or subsequent to it. Even for the said area at village Dundahera Environmental clearance has been granted only for the land measuring 2.85 acres (khasra 939, 941/2, 944, 946, 949, 951 and 953). For the major part of the land in village Dundahera for which, NOC have been granted, is not included in the Environmental clearance. The total area of land which has been left out is 11.15 acres. In other words the total area which is 2.85 acres has been included in the Environmental clearance dated 24.04.2013 for establishment of the plant which can by no stretch of imagination can be said to be sufficient for construction/establishment of the same.

On perusal of Environmental clearance granted in the instant case, at point 6 in reference to the letter dated 30.03.2013 sent by Municipal Commissioner Nagar Nigam, Ghaziabad it has been mentioned that no other side "is available for municipal solid waste scheme Ghaziabad. But in the letter dated 26.08.2013 issued by Secretary Ghaziabad Development Authority (pg 608 and 1171 of the paper book) the Municipal Commissioner Nagar Nigam Ghaziabad categorically mentions about another land measuring 16.249 acres available at village Galand and peepalhera. Further it is stated in the letter that the land has been handed over to Nagar Nigam Ghaziabad by the Development Authority and Tehsildar Nagar Nigam had been intimated to take possession of the spot. Further a request was made to the Municipal Commissioner to fix a date and depute Tehsildar to be present on the land in question to take possession. It was also noted in the letter that a petition is pending before the Hon'ble Supreme Court with regard to solid waste development scheme and the State is following the progress of the said case. In such view it was stated by the Secretary Development Authority to the Municipal Commissioner to take possession of 16.249 acres of land and proceed with the work of municipal solid waste management plant at the earliest.

But it appears that Municipal Corporation Ghaziabad has totally ignored the said communication sent to it by the Development Authority and no steps has been taken in respect of the other site, as a result of which nothing could be proceeded further for establishment of the plant. Subsequently, the Vice Chairman Ghaziabad Development Authority vide his letter dated 20.03.2014 to the Municipal Commissioner informed about the transfer to 2.9835 acres of land in village Galand for solid waste management. Therefore, in all 19.23277 acres in village Galand was made available for solid waste management plant.

Further a request was made to nominate a Officer of Municipal Corporation to take possession of the land at the site. The said Secretary of Housing and Urban Planning as well as Town Development Department were sent intimation for necessary action. In pursuance thereof Tehsildar Development Authority had sent a letter to Tehsildar Municipal Corporation on 9th of May 2014 for taking possession of the land at village Galand and Peeplaheda. Accordingly the inspection of the site was got done by one Surender Saxena of Development Authority Chandra Prakesh Kanungo, Jagveer Singh and Jogjotjain and Lekhpal Singh of Municipal Corporation Ghaziabad (pg 1178 and 1179).

On perusal of the affidavit dated 17th November 20014 (pg 1256) filed by Mr. Ravinder Godbole, Secretary Ghaziabad Development Authority reveals that the Ghaziabad Master Plan 2021 was considered in the meeting held on 20.06.2005 which was attended by eleven persons including Mr. R.B. Maurya, Municipal Commissioner Ghaziabad. It has also been deposed in para 7 of the affidavit that in terms of integrated township Policy 2005, the committee constituted under it by the State Government, proposed for the licenses to be granted to M/s. Ansal Properties and Infrastructure for development of 152.89 acres of land and M/s. Crossings Infrastructure Pvt. for the development of 360 acres of land which included the 14 acres of land upon which the SWM plant was proposed to be built and only after approval of the board that the licenses were granted on 29th May 2006.

Despite of said decision having been taken by the Board in its meeting dated 20th June 2005 in which U.P. Jal Nigam, to which they were a party, forwarded a modified Detailed project Report for Ghaziabad to the Ministry of Urban Development, Government of India. Thereafter the said Ministry conveyed technical approval of the Government of India for implementation of the same mentioned in its letter dated 23rd August 2005, at a total cost of Rs. 1352.00 lakhs subject to the remarks contained in the technical comments enclosed therein. Further it was mentioned in the letter that no fund would be released for setting up of composite plant or sanitary landfill unless the relevant documents relating to minimum availability of 23 acres of land in possession of Municipal Corporation are submitted to that office. Thus the proposed municipal solid waste plant cannot be constructed at the site in village Dundahera and the issue answered is negative.

Whether the proposed municipal solid waste plant will cause environmental hazarders/impact on the people residing in the vicinity of the proposed site?

Clause 17.6.10 of the Manual gives the estimation of landfill gas quality and quantity. Landfill gas is generated as a product of waste bio-degradation. Methane and Carbon dioxide are the principle gases produced from the anaerobic decomposition of the bio-degradable organic waste component in municipal solid waste. When methane is present in the air, in concentration between 5 and 15 per cent, it is explosive because only limited amount of oxygen is present in a landfill when methane concentration reaches this critical level, there is little danger that the landfill will explode. However, Methane mixtures in the explosive range can form if landfill gas migrates offsite and mixes with the air.

The U.P. Pollution Control Board in its reply dated 24.09.2012 under RTI at point No. 4 stated that in the case non disposal of the municipal solid waste in accordance with the Rules there would be effect of foul smell which would spread due to garbage lying in the disposal place. In such a situation the problem of public health may arise. Similar reply had been given by the Pollution Control Board in its reply, at point No. 4 on 24th September 2012. The proposed height of the boundary wall around the landfill site is not 30 feet on all sides but 6 feet on 2 sides and 30 feet on the remaining two sides. However at present the boundary wall is proposed on 2 sides and green belt is only on North West, West and South West sides. Therefore only noise and fugitive dust can be attenuated green belt but odour cannot be obstructed by physical barriers. There is no buffer zone around the site and contrary to it there is habitation, housing complexes around the proposed MSW plant. The U.P. Pollution Control Board in its reply to RTI dated 24th September 2012, at point 26 has stated that the distance of nearby population from the place of proposed municipal solid waste disposal is around 50 meters in West direction and in the North direction there is Sushant city project adjacent to the project.

Moreover the road would create jams and the truck carrying garbage would roam around residential colonies. As a matter of fact in an around the solid waste management plant high quality roads are necessary to ensure the free flow of traffic and a fast turnaround of vehicles. Roads of 3 types are required for the said purpose which includes main access road (permanent), arterial road (permanent) and temporary road. The transportation of solid waste itself will cause threat to the local people residing in the vicinity of the solid waste plant, heavy lorry, traffic while carrying solid waste can give rise to nuisance, damage to road surface, verges and routing problems. As such it is necessary to avoid residential area whereas the respondent authorities have chosen the side of solid waste management plant in the midst of heavy residential colony. It is relevant to mention here that the green belt will take at least 8 to 10 years to grow but the EC granted for the project is for 3 years therefore the proposed green belt is only an eye wash. Therefore proposed plant would cause hazardous impact on the health of the people residing in its vicinity.

It is further stated in the case of Reyons Enlighting Humanity (supra) that:

"47. Moreover, It is bound to have hazardous effects on the health of the residents of the University/villages, some of them being adjacent to the site in question. The site in which the plant is located, is bound to cause pollution of ground water, which is relatively at a higher level, by leaches. This is inevitable especially in the rainy season. The municipal solid waste, which has been dumped in the open area at the site without any laying of impermeable membrane lining. Therefore, the contaminated water is bound to seep into the underground water and even affect the adjoining water bodies apart from affecting irrigation water. Even the dumping sites have not been prepared in accordance with the rules. The foul smell arising from the dumping at the site is bound to pollute the air quality of the area. This bad smell is bound to affect the health of the residents in the vicinity of the site and because of pollution; they would be exposed to diseases like asthma, emphysema and even cancer. Thus, the adverse effects of permitting the plant to carry on its activities at the site in question are bound to cause irretrievable damage to public health and environment."

One another question which requires consideration by this Tribunal is with regard to the impact of the decision given by the High Court of Allahabad against which as SLP (32118 of 2011) pending before the Hon'ble Supreme Court, to the present litigation before High Court of Allahabad writ petitions were filed by persons who are concerned with the land as well as the approval of plan on which cluster of building complexes have come up at village Dundahera. After decision of the petitions by the High Court of Allahabad Special Leave Petitions have been filed and are pending before the Hon'ble Supreme Court, it is pertinent to note here that present applicants/appellants were not a party to the proceeding before the High Court or Hon'ble Supreme Court. After filing of the present application/appeal before this Tribunal in respect of environment and its protection and a transfer petition (1948/2013) came to be filed before the Hon'ble Supreme Court by Nagar Nigam Ghaziabad (R-4). But Hon'ble Supreme Court dismissed the transfer petition on 13.12.2013. Since thereafter the present proceedings have been continued before the Tribunal. The applicants have approached this Tribunal on an independent cause of action than the one under which the petition were filed by the respective petitioners before the High Court of Allahabad.

Moreover the subject matter of the application/appeal before this Tribunal is against the selection of inter alia selection of site for landfill and proposed construction of MSW plant which is in violation of Municipal Solid Waste (Management and Handling) Rules 2000 and Solid Waste Management Manual. Such project on the proposed site which is surrounded by habitation would certainly result in environmental hazards. In other words the grievance of the applicant/appellant and the relief sought before this Tribunal are totally different and were never before the Learned High Court. Therefore, the judgment passed by the High Court and the result of the petitions before the Hon'ble Supreme Court do not bar the applicant from seeking redressal by approaching against the proposed project of MSW plant.

In order to sum up the case, it may be mentioned that the nature of land in question at village Dundahera was agriculture up to June 2005. The Nagar Nigam Ghaziabad had applied for authorization on 23.06.2003, as per the rules. However the said application was rejected due to lack of sufficient information, vide letter dated 21.07.2004. The Nagar Nigam had again submitted the requisite information on 22.04.2004 and requested Pollution Control Board to grant NOC for establishing municipal solid waste management system. While granting no objection certificate by letter dated 12.08.2004 U.P. Pollution Control Board had laid down, on the basis of recommendation received from Regional Officer Ghaziabad, that the city solid waste processing facility is to be on the proposed site of the land in Dundahera at Village Chipayana and a total area was to be 47 acres. Within the said land 14 acres was in village Dundahera and 33 acres in village Chipayana. It may be noted here that subsequently when the Department of Housing and Urban Planning, Government of U.P. issued the notification on 21.10.2009 for changing land use from residential to dump yard had passed the same only for 14 acres of land in village Dundahera. In so far as the land (33 acres) at village Chipayana is concerned no such notification had been issued at that time or subsequent to it.

Later on, the land was proposed for solid waste management plant. At that time there was an increasing pressure for the housing and establishment facilities in the urban areas with a demand of about 15 lakhs housing units in five years and 3.2 lakhs were required for each year. On account of scarcity of financial resources and limited capacity, the State Government encouraged private capital investment so that the housing facility may be made easily available to all classes of society, according to their financial capacity. The role of the State Government was that of a catalyst, in place of provider. The Uttar Pradesh State Government emphasized on simplifying the procedure and to remove constraints which were being faced by private sector in housing activities. Accordingly, the State of U.P. had notified an integrated township policy on 21st May, 2005, by virtue of which it was proposed that land be acquired and developed for housing scheme with the help of private investment.

It was in conformity with the policy of the State Government that the Master Plan, 2021 of district Ghaziabad was finalized on 14.07.2005. In the said Master Plan, the use of land was changed to residential, including the one which was reserved for solid waste management plant at Dundahera. It is noteworthy that the municipal Commissioner Nagar Nigam was one of the members of the committee. As the use of land of the dumping yard had been changed in the Master Plan, the pollution control board had sent a show cause notice to Nagar Nigam on 10.06.2008 as to why the conditional NOC issued to it be not cancelled for non-compliance of the conditions imposed therein. The Nagar Nigam did not reply to the show cause and therefore, the NOC was revoked on 15.07.2008.

In terms of policy of 2005, the Committee constituted thereunder by the State Government proposed that licenses be issued to Ansal Properties for development of 152.89 acres of land and Crossings Infrastructure for 360 acres, which included 14 acres of land upon which SWM plant was proposed to be built and it was only after the approval of the Board that the licenses were granted to both the developers on 29th May, 2006. GDA respondent No. 8 had submitted in its reply that it had passed the layout plan for 320 acres of land. Further it is submitted that two integrated township were allowed on a total area of 500 acres and in accordance with the sanctioned scheme for housing a total of approximately 26,000 flats, plots had been proposed.

Thereafter, many residential units had started coming at Dundahera in an area of about 400 acres. The State Government had also held a meeting, through Chief Engineer, Urban town planning, to monitor the development of integrated township which is reflected from the minutes of 19.06.2009. With passage of time the township in the area grew further to 760 acres which comprised of 16 lakhs residential flats, commercial complexes, malls, hospitals and educational institutions, etc.

Accordingly, all residential complexes in village Dundahera were developed. Presently 15,000 flats are already in existence and more than 10,000 families are residing in the multi storey flats, above 18 storeys, Amarpali Group, Assotech Group, Prateek Group, Exotica, Sky tech buildings etc. Behind these flats there are other buildings constructed by developers such as Buland Heights, Arihant, Crossings Republic, Gardenia, Pancheel, Proview, Golden Heights, Cosmos, Dreamland, Supertech, Paramount, Gaur, Ajnara, Saviour etc. Many photographs have been placed on record to show large extent of construction which is already in existence on the land adjacent to the site of the plant. (Pages 610 to 614, 637, 1150 and 1151).

All these buildings have already come up fully, whereas the proposed site for dumping yard is only having a boundary wall and is yet to be established. The boundary wall alone came into existence because the Hon'ble Supreme Court had so ordered in 25.04.2013. Therefore, it is not the dumping yard but the buildings in the surrounding areas which have already been established and developed during the period when admittedly the land reserved for dumping yard had already stood changed to residential and so marked in the Master Plan.

It was only thereafter in the year 2009 that at the behest of Municipal Corporation which was a party to the committee finalizing the Master Plan 2021, that the land use was again changed from residential to dumping yard, by the State Govt., vide Notification dated 21st October, 2009. It is relevant to mention here that the Master Plan 2021 was proposed under Chairmanship of GDA, Secretary Housing State of U.P., Member of Ministry of Town Planning, Project Director U.P. Jal Nigam. Municipal Commissioner Nagar Nigam Ghaziabad etc. and it bear the signature of Nagar Ayukt Ghaziabad also. Subsequent to it the State pollution Control Board had again granted conditional NOC to Nagar Nigam, Ghaziabad on 23.11.2009. Under the said NOC, to set up a solid Waste Management plant in an area of 14 acres in village Dundahera, a condition had been laid down that it has to obtain EC from SEIAA, and there shall be no violation of the Rules of 2000.

It may be relevant to mention here that the public notice dated 19.12.2008 issued by the Ghaziabad Development Authority (Danik Jagran, Pg 188) regarding the change in the land use from residential to dump yard was in respect of Khasra Nos. 937/1, 937/2, 939, 941/2, 944, 946, 949, 951, 953 and 938. The total area of this land was 14 acres. Whereas the Environment clearance had been granted only for Khasra Nos. 939, 941/2, 944, 946, 949, 951, 953. The total area comes to 2.85 acres. In so far as remaining Khasra No. 937/1 (0.625 acres), 937/2 (9.086 acres) and 938 (1.437 acres) are concerned the total area of the land of these Khasra Nos. comes to 11.15 acres. In other words the Environmental Clearance for solid waste management plant in Dundahera is only for land measuring 2.85 acres which can neither be sufficient for dump yard nor for a plant in respect of solid waste management. According to Clause 7 of Schedule III of the Rules of 2000 a land fill site should be enough so as to last for 20-25 years but the Environmental clearance of 24.04.2013 clearly specifies that it is intended to be granted for 3 years.

The Municipal Corporation had applied for EC on 15.10.2008, whereas the use of land had been changed in Master Plan to dumping yard only on 21.10.2009. The terms of reference regarding the project were communicated to the project proponent on 12.03.2009. Public hearing in the matter was conducted on 20.04.2010. Finally EIA report was submitted by project proponent to SEIAA on 19.03.2013. The matter is said to have been discussed on 22.03.2013, 02.04.2013 and 17.04.2013. SEIAA EC for Khasra No. 939, 941/2, 944, 946, 949, 951 and 953 in village Dundahera on 24.04.2013. Therefore, it is important to note that after having received the said application filed by the Municipal Corporation, way back in the year 2008, SEIAA respondent No. 6, proceeded with unprecedented haste and concluded it between the period March 2013 to April, 2013. SEIAA had not properly examined or discussed the project proposals in its aforesaid meeting. The committee had neither noted nor adequately addressed itself in respect of the management of air pollution, water pollution, noise pollution, etc. It did not discuss the details of the project surroundings including distance and direction from the periphery of the land fill site. It failed to consider the fact that the dumping yard site cannot come up adjacent to habitation clusters. It leaves no room of doubt that the EC granted in April 2013 for SWM plant was by ignoring the all-round construction activity, the development which had taken place around the proposed site and the fact that the area was fully inhabited as well as densely populated. It was not a case of an individual or even a single developer who had raised a construction on their own or in an illegal manner.

The appellants occupied their respective flats in the month of October/November 2012 and came to know about the development of dumping yard at the proposed site, after few months of their occupation. The Crossings Republic is a consortium of nine builders/developers. Each of the developer has developed its own project. The appellants/appellants are residing in one of those projects, at Buland Heights.

In the instant case there had been clear violation of the Rules of 2000 in many respects. On perusal of the record including photos etc it clearly reveals that there are number of multi-storey buildings in the vicinity and some of them are just wall to wall distance from the proposes site and all these buildings have come up after due approval of the layout plants by Ghaziabad Development Authority. Further, Chipyana village having a population of 70,000 people, is on the North side and Shaberi village with a population of 25,000 people, is on the East side. In the affidavit filed on behalf of Nagar Nigam Ghaziabad on 24.02.2014, in compliance of the orders dated 31.10.2014 and 22.01.2015, it has been mentioned in para 7 that "the aforesaid measures are a step of Ghaziabad Nagar Nigam in order to try and overcome the shortfall of the 500 meters of buffer zone--" (Pg 1271). Since there is all round construction and dense inhabitation in the vicinity of the proposed site, bringing of the project in such a situation is bound to have adverse effect on the health of the people at large. If the plant is to be developed by the proposed site, it would certainly result in air pollution, foul smell, contamination of underground water etc. Therefore it is a dire necessity to have the project shifted to another place and in doing so there would be no tilt of balance against the concept of sustainable development because it would be in the interest of citizens who are residing in the area and they have constitutional right for clean and pure environment.

An agreement was executed between Municipal Corporation and M/s. Holofix Pvt. for implementation of the project. A case is pending before the Hon'ble Supreme Court wherein a stay had been granted on 26.02.2013 in such a situation the Act of Municipal Corporation Ghaziabad of entering into an agreement on 25.04.2013 with M/s. Holofix is contempt of the aforesaid order of the Hon'ble Supreme Court. The GDA has, due to the pendency of the case before the Hon'ble Supreme Court, allocated another site measuring 16.24927 acres to the Municipal Corporation vide letter dated 26.08.2013. (Annexure B).

In reply given by U.P. Pollution Control Board on 24th September 2012 in response to RTI (Pg-42) it has been mentioned at point No. 26 in Dundahera the distance of nearby population from the place of proposed municipal solid waste disposal is around 15 meters in West direction and in the North direction there is Sushant city project adjacent to proposed solid waste management project. In such a situation it is not possible to fulfill the requirement under this clause so as to have an approach and other internal roads for free movement of vehicles and other machinery at the landfill site.

But in the letter dated 26.08.2013 issued by Secretary Ghaziabad Development Authority (pg 608 and 1171 of the paper book) the Municipal Commissioner Nagar Nigam Ghaziabad categorically mentions about another land measuring 16.249 acres available at village Galand and peepalhera. Further it is stated in the letter that the land has been handed over to Nagar Nigam Ghaziabad by the Development Authority and Tehsildar Nagar Nigam had been intimated to take possession of the spot. Further a request was made to the Municipal Commissioner to fix a date and depute Tehsildar to be present on the land in question to take possession.

In such view it was stated by the Secretary Development Authority to the Municipal Commissioner to take possession of 16.249 acres of land and proceed with the work of municipal solid waste management plant at the earliest.

Subsequently, the Vice Chairman, Ghaziabad Development Authority vide his letter dated 20.03.20014 to the Municipal Commissioner informed about the transfer to 2.9835 acres of land in village Galand for solid waste management. Therefore, in all 19.23277 acres in village Galand was made available for solid waste management plant. Further a request was made to nominate an Officer of Municipal Corporation to take possession of the land at the site. The said Secretary of Housing and Urban Planning as well as Town Development Department were sent intimation for necessary action. In pursuance thereof Tehsildar Development Authority had sent a letter to Tehsildar, Municipal Corporation on 9th of May 2014 for taking possession of the land at village Galand and Peeplaheda. Accordingly, the inspection of the site was got done by one Surender Saxena of Development Authority Chandra Prakesh Kanungo, Jagveer Singh and Jogjotjain and Lekhpal Singh of Municipal Corporation Ghaziabad (pg 1178 and 1179).

In this case, it is rather strange that due to omissions and commissions of the Respondents themselves, controversy has arose between the parties. It appears that as early as in the year 2003, the Municipal Corporation contemplated to have land for dumping the Municipal Solid Waste (MSW) and accordingly they applied for authorization on 23rd June, 2003. But this step of the Corporation was lacking sincerity and as such, the said Application was rejected on 21st July, 2014, due to insufficient information. On subsequent Application filed by the Corporation, the Utter Pradesh State Pollution Control Board (UPSPCB) issued NOC on 12.8.2004 for a total area of 47 acres out of which 14 acres was in village Dundahera and 33 acres in village Chipiyana. However, thereafter the Municipal Corporation went into slumber and nothing was done in the matter for a long time and many years passed. With passage of time pressure was mounting on the State Govt, for use of land for the public housing. There was scarcity of finance at the Govt, level and as such, private capital investment was thought to be encouraged. Hence, the State Govt, notified an integrated township policy on 21.5.2005, under which the land was to be acquired and developed for housing scheme with the help of private investment. In conformity of the said policy the Master Plan of Ghaziabad was finalized on 14.7.2005. The nature of land was then changed to residential, including the one meant for dumping yard for MSW. It is to be noted that Municipal Corporation, Ghaziabad was not only the member to the Committee, which finalized the Master Plan, but its Commissioner was a signatory to it. This resulted in issuance of Notice by the Pollution Control Board to the Municipal Corporation on 10.6.2008, as to why NOC granted earlier be not cancelled for non-compliance of terms and change of land use to residential. The Municipal Corporation did not care to reply the said Notice and, therefore, NOC granted earlier on 12.8.2004, had been revoked by the Pollution Control Board vide order dated 5.7.2008. The aforesaid events not only reflected the half-hearted approach of the Municipal Corporation to have a dumping yard for MSW, but latches on their part to further carry out the project which they intended since the year 2003.

It was in the year 2008 that the Municipal Corporation had woke up and again thought of the project for MSW management and had itself applied for Environment Clearance (EC) on 15.10.2008. It is pertinent to note that the Corporation was one of the signatory of the Committee, which finalized the master-plan in July, 2005 and at the relevant time, the use of land was still that of residential, because it was only on 19th December, 2008, that a public notice was issued by Ghaziabad Development Authority (GDA), in 'Dainik Jagran', for change of use of the land from residential to dumping yard. The total area mentioned therein was 14 acres. The department of Housing and Urban Planning, Govt., of Uttar Pradesh, had then issued Notification on 21.10.2009 for change of land use from residential to dumping yard but was only for the land in village Dundahera, having total area of 14 acre. It is noteworthy that no such Notification was issued for the land (33 acres) in village Chipiyana. The Pollution Control Board had again granted NOC on 23.11.2009 with the condition to obtain EC and not to violate the Rules, 2000. It is to be noted that contrary to earlier NOC granted by the Pollution Control Board second NOC was not in respect of the land in village Chipiyana, which reduced the area of the land from 47 acres to 14 acres, which was in village Dundaher. But while issuing Notification, by mentioning Khasra, for change in use of the land the area was 14 acres, but ultimately the EC mentioned Khasra number of lands, with a total area of 2.58 acres only.

Besides the Municipal Corporation, had earlier since the year 2003, proceeding in respect of the project with a snails speed. But it again took speed in 2008 by applying for EC. The Terms of Reference (ToR) were submitted by the Project Proponent (PP) in March 2009, and public hearing was done on 20.4.2010. Soon it took up jet speed when EIA Report was submitted to SEIAA on 19.3.2013; the matter was discussed on 22.3.2013 and 17.4.2013 and EC was granted on 24.4.2013. In the intervening period, since declaration of the housing policy in the year 2005, the private investors had been invited; licenses, were issued to them and their let-outs, plans were approved by GDA. Thereafter, the township developed in the area with number of multi storyed buildings and thousands of families having occupied the same.

As the area proposed for MSW management plan was surrounded by inhabitation, a fact which was admitted by the Pollution Control Board in its reply under the Right to Information on 24.9.2012, GDA allocated another site on 26.8.2013, measuring 16.24927 acres (Annexure-B). A letter was sent by the Secretary, Development Authority on 26.8.2013, (pgs 60 and 1171) of the paper book) with regard to other lands in villages Galand and Peeplaheda, mentioning therein that the land was handed over to Nagar Nigam and its Tehsildar was intimated to take possession on the spot. Simultaneously, a request was made to the Municipal Corporation to depute the Tehsildar and fix the date for taking possession on the spot so as to proceed with the management plan. Subsequently, the Vice Chairman, GDA informed to the Municipal Corporation on 20.3.2014 with regard to transfer of another land measuring 2.3035 acres in village Galand and he was requested to nominate the officer of the Corporation to take possession. The intimation in this regard was also sent to the Secretary, Housing and Urban Development and also Town Development Department. In furtherance of it, the Tehsildar GDA had sent a letter to the Tehsildar of the Corporation on 9.5.2014 to take possession of the land in village Galand and Peeplahed. Inspection of the land was got done by Surender Saxena of Ghaziabad Development Authority, Chandra Prakesh Kanungo, Jagveer Singh, Jogjotjain and Lekhpal Singh of Municipal Corporation Ghaziabad (pg 1178 and 1179 of the paper book) but no steps had been taken by the Municipal Corporation for taking over possession of the land allotted in the year 2013 and 2014, much less to say, to proceed thereafter with full efforts so as to establish the plant at the earliest.

The sequence of the events, which had taken place in the present case, particularly the manner in which the Municipal Corporation had been proceeding, clearly goes to show that initially they did not acted promptly so as to take immediate steps for having the dumping yard and later on to establish an MSW plant. The Municipal Corporation had even become a party to finalization of the Master Plan, which shows that they had totally lost interest in the project. Resultantly, there was change in the land use from dumping yard to residential; finalization of the Master Plan in furtherance of integrated township policy of 2005; passing of the layout plan by GDA of the developers who had made huge investments in bringing up the housing facilities for the public and the people in large number occupied their flats and started residing in the vicinity of the site. The whole position boils down that the EC has been granted for the land which measures only 2.85 acres. Even the subsequent orders passed by GDA in the year 2013 and 2014 in respect of other lands were not seriously taken and no positive action was made in respect of it. Despite of repeated reminders coming from GDA to take possession at the site by deputing its officer for the purpose. But, simultaneously, after filing the Application for EC on 15.10.2008, the Municipal Corporation had in the year 2013, proceeded with the matter expeditiously and the EC was obtained on 24th April, 2013 for the land which was neither suitable nor adequate in area for the purpose. The reasons for delay and latches from the beginning, then getting the land use changed to residential after being party to it, and not taking over the additional land, which was being provided, but insisting to have MSW plant on the same site, which would not be useful for that purpose and the compliance of Rules, 2000, which cannot be made in many respect, are best known to the Municipal Corporation itself. Infringement of rights of the citizens residing in the area, in respect of environmental protection, are not at all being looked into or taken care of by the Municipal Corporation. Therefore, we have reached to the enviable conclusion that the MSW management plant cannot be established on the site concerned as per the Rules and Manual; it is not suitable at all for the said purpose and keeping in view the fact that lakhs of people, who are residing in the buildings which have been raised on the land meant for residential use and the layout plans of which have been duly approved by GDA.

In the result, this Appeal deserves to be allowed.

Accordingly, we order that:

The EC granted on 24th April, 2013, is quashed and set aside.

By permanent, Prohibitory Injunction, we restrain the Respondent No. 4 from dumping Municipal waste at the site in question.

By Mandatory Injunction, the Respondent No. 4 to remove all the Municipal waste dumped at the site within a period of six (6) weeks.

The No Objection Certificate dated 23.11.2009 granted by the Utter Pradesh State Pollution Control Board, is hereby quashed and set aside.

However, there shall be no order as to costs.