BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH NEW DELHI ………….. ORIGINAL APPLICATION NO. 186 OF 2013 (Miscellaneous Application No. 614/2013) In the matter of: 1. Rayons-Enlighting Humanity & Anr. Through its Secretary, Marwari Ganj, Near Labour Stand, Bareilly-243005, U.P. 2. Latif Beg, Village Padarathpur, Bareilly-243005, U.P. ……………………………Applicants Versus 1. Ministry of Environment and Forests Through the Principal Secretary, Paryavaran Bhawan CGO Complex, Lodhi Road New Delhi-110003 2. Uttar Pradesh Pollution Control Board. PICUP Bhawan, III Floor, Vibhuti Khand, Gomti Nagar, Lucknow-226016, U.P. 3. State Level Environment Impact Assessment Authority Directorate of Environment, Uttar Pradesh Dr. Bhim Rao Ambedkar Paryavaran Parishar, Vineet Khand-1, Gomti Nagar Lucknow-226010, U.P. 4. Nagar Nigam, Bareilly, U.P. 5. Dr. I.S. Tomar, Mayor, Nagar Nigam, Bareilly, 35-A/2, Rampur Garden, Bareilly (Uttar Pradesh) …………...Respondents Counsel for Applicants : Mr. Raj Panjwani, Sr. Advocate and Mr. Aagney Sail, Advocate for Applicants
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Counsel for Respondents : Ms. Neelam Rathore, Advocate for Respondent No.1 Mr. Daleep Kumar Dhayani, Mr. Pradeep Misra, Advocates for Respondent No.2 Ms. Savitri Pandey, Advocate for Respondent No.3 Mr. Anil Nag, Advocate for Respondent No.4 Mr. M.L. Lohti, Mr. Kaushik Dey and Ms. Gargi Bhatta Bharah Advocates for Respondent No. 5 ORIGINAL APPLICATION NO. 185 OF 2013 (Miscellaneous Application No. 627/2013) In the matter of : Invertis University Invertis Village, Bareilly- Lucknow Highway NH-24, Bareilly Uttar Pradesh-243123 …..Applicants Versus 1. Union of India, Through Secretary, Ministry of Environment and Forests Paryavaran Bhawan CGO Complex, Lodhi Road New Delhi 2. State Level Environment Impact Assessment Authority Directorate of Environment, Uttar Pradesh Dr. Bhim Rao Ambedkar Paryavaran Parishar, Vineet Khand-1, Gomti Nagar Lucknow. 3. Uttar Pradesh Pollution Control Board. Through Member Secretary, PICUP Bhawan, III Floor, Vibhuti Khand, Gomti Nagar, Lucknow Uttar Pradesh 4. Municipal Corporation, Bareilly Through Commissioner Nagar Nigam Office, Bareilly (Uttar Pradesh) 5. Dr. I.S. Tomar, Mayor, Municipal Corporation, Bareilly, 35A/2, Rampur Garden, Bareilly-243001 (Uttar Pradesh) 2
6. The Amar Ujala, Through its Chief Editor, 19, Civil Lines, Shahjahanpur Road, Bareilly-243001 (Uttar Pradesh) …….Respondents Counsel for Applicants : Mr. Rahul Choudhary, Advocate Counsel for Respondents : Mr. Neelam Rathore, Advocate for Respondent No.1 Mr. Savitri Pandey, Advocate for Respondent No.2 Mr. Daleep Kumar Dhayani, Mr. Pradeep Misra, Advocates for Respondent No.3 Mr. Anil Nag, Advocate for Respondent No.4 Mr. M.L. Lohti, Mr. Kaushik Dey and Ms. Gargi Bhatta Bharah Advocates for Respondent No. 5 Mr. P.R. Rajhans, Advocate for Respondent No. 6 ORIGINAL APPLICATION NO. 187 OF 2013 (Miscellaneous Application No. 648/2013) In the matter of : 1. Jyoti Mishra, W/o Sh. Yogesh Pandey, Village Razau Paraspur, Bareilly-243001, U.P. 2. Vinesh Pal Singh, S/o Mathura Singh, Village Gopal Pur, Bareilly-243001, U.P. 3. Hariom Singh S/o Ajay Pal Singh, Village Gopal Pur, Bareilly-243001, U.P. 4. Sanjay Sagar S/o Ram Das, Village Razau Paraspur, Bareilly-243001, U.P. 5. Arif Ali S/o Ashique Ali, Village Bhindaulia, Bareilly-243001, U.P. 6. Farzand Ali S/o Liaquat Ali, Village Padarath Pur, Bareilly-243001, U.P. Versus
……………………….Applicants
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1. Ministry of Environment and Forests, Union of India Through Secretary, Paryavaran Bhawan CGO Complex, Lodhi Road New Delhi-110003. 2. State Level Environment Impact Assessment Authority,Directorate of Environment, Uttar Pradesh Dr. Bhim Rao Ambedkar Paryavaran Parishar, Vineet Khand-1, Gomti Nagar Lucknow.-226010 3. Uttar Pradesh Pollution Control Board. Member Secretary, PICUP Bhawan, III Floor, Vibhuti Khand, Gomti Nagar, Lucknow-226016, U.P. 4. District Magistrate, Bareilly-243001, U.P. 5. Bareilly Development Authority, Through Chairman, Bareilly-243001, U.P. 6. Municipal Corporation, Bareilly Through Commissioner Nagar Nigam Office, Bareilly-243001, U.P. 7. Sh. Umesh Pratap Singh, Commissioner, Nagar Nigam, Bareilly (Uttar Pradesh) 8. Dr. I.S. Tomar, Mayor, Nagar Nigam, Bareilly, 35-A/2, Rampur Garden, Bareilly (Uttar Pradesh) …….Respondents Counsel for Applicants : Mr. Gaurav Mitra, Advocate with Mr. Kartik Nagarkatti, Advocate for Applicants Counsel for Respondents : Mr. Neelam Rathore, Advocate for Respondent No.1 Mr. Savitri Pandey, Advocate for Respondent No.2 Mr. Daleep Kumar Dhayani, Mr. Pradeep Misra, Advocates for Respondent No.3 Mr. Anil Nag, Advocate for Respondents No.6 and 7 Mr. M.L. Lohti, Mr. Kaushik Dey and Ms. Gargi Bhatta Bharah Advocates for Respondent No. 8 4
JUDGMENT PRESENT : Hon’ble Hon’ble Hon’ble Hon’ble Hon’ble
Mr. Justice Swatanter Kumar (Chairperson) Mr. Justice U.D. Salvi (Judicial Member) Dr. D.K. Agrawal (Expert Member) Prof. (Dr.) P.C. Mishra (Expert Member) Dr. R.C.Trivedi (Expert Member) Dated : October 24, 2013
JUSTICE SWATANTER KUMAR, (CHAIRPERSON): 1.
Applications No. 86/2013, 99/2013 and 100/2013 were filed
by Rayons-Enlighting Humanity (a Society registered under the Society Registration Act, 1860), & Anr., Invertis University and Jyoti Mishra & Ors. (a group of residents of Village Razau Paraspur, Bareilly), respectively, challenging the establishment and operation of a Municipal Solid Waste Management Plant (for short the ‘MSWM’ Plant), a project of Nagar Nigam, Bareilly, at Village Razau Paraspur, Bareilly. In these applications, it had been stated that operation of the plant was illegal, being in violation of the EIA Notification, 2006 (for short the ‘Notification’), and the applicants had prayed for quashing of the Circular dated 15th January, 2008, of the Ministry of Environment & Forests, which permitted the establishment and operation of the plant; awarding compensation due to health hazards suffered by various persons, including the applicants; directing restoration of the site to its original state; and shifting of the MSWM plant to a duly recognised site. The challenge had been raised on the ground that it was being established at a site which was not approved and that the NOC dated 3rd January,
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2005 was illegal and not in accordance with law. It was mandatory for Respondent No.4 to obtain environmental clearance (for short the ‘EC’) from the competent authority in terms of the Notification and that the MSWM plant would have had very adverse effects on public health and environment as it is in the midst of educational institutions, hospitals and village community. 2.
Notices for admission were issued by the Tribunal vide its
order dated 16th April, 2013. After replies were filed, the learned counsel appearing for the parties were heard and upon conclusion of the arguments, the Bench passed the following order on 28th May, 2013: “Arguments Heard. Judgment Reserved. Learned Counsel appearing for the Uttar Pradesh Pollution Control Board (UP PCB) has filed a complete original record during the course of the day and the same is taken on record. Record filed by the UPPCB shall be retained till the pronouncement of the judgment. In the meanwhile, no Municipal solid waste shall be dumped at the site in question.” 3.
This Tribunal, vide its judgment dated 18th July, 2013,
allowed these applications and the operative part of the judgment reads as under: “Therefore, we order and direct – (a) immediate closure of the municipal solid waste management plant at Razau Paraspur, Bareilly; (b) by a permanent prohibitory injunction, restraining Respondent No.4 from dumping any municipal waste at the site in question; (c) by a mandatory injunction, Respondent No.4 to remove all the municipal waste dumped at the site within four weeks from today;
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(d) the municipal solid waste management plant at Razau Paraspur, Bareilly, to be positively shifted to any appropriate site within the territorial area of the municipality earmarked in the Master Plan-2021 of Bareilly, for that purpose in consonance with municipal solid waste Rules, 2000. This shall also be subject to Respondent No.4 obtaining consent of Respondent No.3 as well as obtaining EC from the appropriate authority and in accordance with law. (e) The MoEF to ensure that the Member Secretary or any other officer of the State Board should not be a Member in the SEIAA, in order to facilitate independent assessment of the projects at the SEIAA level. (f) Till the above is carried out, Respondent No. 4 may continue to dump Municipal solid waste at the existing Solid Waste dumping grounds other than the site in question for which Respondent No. 3 should provide clear guidelines for site preparation, dumping, compaction, soil layering, disinfectant spray etc. forthwith. (g) The site in question should be restored and developed as per Master Plan 2021.”
4.
Now, after the pronouncement of the final judgment on 18 th
July, 2013, the applicants have filed three different applications being M.A. No. 648 of 2013, M.A. No. 614 of 2013 and M.A. No. 627 of 2013 in Original Applications No. 100/2013, 86/2013 and 99/2013 respectively. These three applications have been filed by Jyoti Mishra & Ors.,
Rayons-Enlighting Humanity & Anr. and
Invertis University respectively and were renumbered as Original Application Nos. 187/2013, 186/2013 and 185/2013 respectively. While we are dealing with the case of O.A. No. 185/2013 (M.A. No. 627 of 2013) i.e. Invertis University v. Union of India & Ors, as the lead case, it will be appropriate to refer to the averments made in each of these applications.
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5.
In O.A. No. 186/2013, the applicant has submitted that vide
order dated 28th May, 2013, it was clearly directed that no municipal solid waste shall be dumped at the site in question. The District Magistrate, Bareilly, wrote to Respondent No.4 on 18 th July, 2013 requesting compliance of the order of the Tribunal dated 28 th May, 2013. A copy of the said letter has been placed on record as Annexure 5. Despite such request and the order having been passed in the presence of the Corporation, the Corporation persisted with dumping of solid waste at the site in question at Village Razau Paraspur, Bareilly, in violation of the order of the Tribunal. Thus, it was prayed that suitable action in accordance with law be taken against Respondents No. 4 and 5 for violating the orders dated 28th May, 2013 and the judgment dated 18th July, 2013. It was further prayed that the District Magistrate, Bareilly, and the Municipal Corporation, Bareilly, should be directed to comply with the final judgment of the Tribunal. Along with these applications, various photographs have been filed showing that on different dates, even on 20th July, 2013, the Corporation was bringing
municipal
solid
waste
and
dumping
the
same
indiscriminately at the site in question and in the open area. This was being brought in various tractors and thrown on the open ground of the site in question. 6.
Referring to the conduct of Respondent No.5, Mr. I.S. Tomar,
Mayor of the Municipal Corporation, it was averred that he has not only been instrumental in violation of the orders of the Tribunal but has also been making undesirable statements against the judgment
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saying that in this one sided judgment, the interest of common people has been defeated against money power. He made these statements to the press reporter of the Amar Ujala. A translation of the statement made by Respondent No.5 to the press on 20th July, 2013, which was made in Hindi, reads as under: “ TALK WITH MAYOR Question:- Why the Tribunal passed the order against you? Answer:- The cost of Plant establishment has not been mentioned anywhere in the judgment. The interest of common people has been defeated against the money power in this one sided judgment. We will approach Supreme Court against this judgment/order. Question:- Why the side of Municipal Corporation became weak/remained ineffective? Answer:- Our side was never ineffective/weak. Our Advocate put the arguments effectively/strongly on our behalf. But when everything was pre-decided then what could we do. Question:- What were the reasons for being uncovered the Plant? Answer:- The Plant was fully covered. Once the waste was exposed due to fault in a machine. Then the waste was moved to covered area. Waste carrying vehicles are also covered. Question:- What were the reasons for not being sprayed the pesticides in the Plant? Answer:- There are electronic equipments installed in the Plant. They spray frequently pesticides. There is no other pollution except a foul smell/stink from the waste disposal. Question:- Where will the waste of the City be collected after this? Answer:- Where it was earlier collected/stored, in Bakarganj. Municipal Corporation has not any other site.”
7.
The statement of the Mayor was reported by other papers of
Bareilly including the Hindustan, the Dainik Jagaran, etc. of the
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same date. In these papers, it was widely reported that in spite of the order of the Tribunal, throwing of municipal solid waste (kooda) at the site in question had not been stopped. These papers have wide circulation and are read by a large number of people. Clippings
of
these
papers
have
been
filed
along
with
the
applications. 8.
O.A No. 185 of 2013 has been filed under Sections 25, 26 read
with Section 28 of the National Green Tribunal (for short the ‘NGT’) Act and Order XXXIX, Rule 2A of the Code of Civil Procedure, 1908 (for short the ‘CPC’). In this application, it has been stated that Respondent No.4 continued dumping of municipal solid waste at the site in question at Village Razau Paraspur, Bareilly, Uttar Pradesh, in gross violation of the order of the Tribunal dated 28th May, 2013 and other Respondents No.5 to 10 of this application, who were responsible for ensuring that the order of the Tribunal was implemented, have failed to do so. The applicant has taken photographs on 10th July and 11th July, 2013 of the plant in question, which was functioning in complete violation of the order of the Tribunal. These photographs have been placed on record. The applicant has even recorded the number of the vehicles which were coming to the site after the restraint order. There were almost 15-20 vehicles filled with solid municipal waste, which were coming to the site on each day to dump the municipal solid waste at the site in question, that too in a most unscientific and improper manner. Further, it has been averred that despite the specific directions contained in paragraphs (a) and (b) of paragraph 49 of the final 10
judgment dated 18th July, 2013, the dumping activity as well as the plant continued to function. Along with this application, the news items which appeared in different newspapers like the Hindi daily ‘Hindustan’ on 20th July, 2013 have been placed on record along with their translation to show that Respondents No.4 and 5 were completely defiant and have not carried out the orders of the Tribunal. The press conference, addressed by Mr. I.S. Tomar, Mayor of the Bareilly Corporation, is also referred to showing that the respondents are completely violating the judgment of the Tribunal. The photographs were taken on 20th and 22nd July, 2013 showing dumping of waste on the road side of the National Highway - 24 as well as the vehicles containing municipal solid waste going inside the plant on 19th to 21st July, 2013. Referring to the conduct and the statements of Respondents No.4 and 5 specifically, it has been prayed that the authorities concerned be directed to strictly implement the order of the Tribunal as well as action be taken against the authorities, who have violated the order of the Tribunal dated 28th May, 2013 and the judgment dated 18th July, 2013. 9.
O.A. No. 187 of 2013 has been filed on behalf of the villagers.
In this application, it is averred that despite having noticed the judgment of the Tribunal dated 18th July, 2013, the Municipal Corporation has been continuing to operate the impugned MSWM plant and is regularly dumping municipal waste inside the plant through trolleys and dumper trucks without regard to the specific order of the Tribunal. It is stated that daily, an average of almost 40-50 tractor/trolley loads of municipal solid waste are being 11
dumped at the site of the impugned plant, amounting to approx. 2,000 truckloads as on 18th July, 2013. In order to hide the actual quantity of solid waste dumped at the site, the Corporation is even covering the pits with soil and is doing so without any segregation or scientific treatment of the same in violation of the Municipal Solid Waste (Management & Handling) Rules, 2000 (for short “MSW Rules”) as well as the orders of the Tribunal. This application further states that in terms of the order dated 18th July, 2013, the Municipal Corporation, Bareilly, was required to remove all the municipal waste dumped at the site within four weeks from the date of the order but the Corporation has taken no concrete steps to remove the same and to corroborate the same, the applicants have taken photographs of the solid waste lying exposed at the site in question. These photographs have been placed on record to establish the facts. 10. The applicants in this application also aver that with the intention to harass the residents in the vicinity of the impugned MSWM plant, the Corporation has resorted to dumping the municipal solid waste on the open land around NH-24 adjoining the Villages
Razau Paraspur, Padarathpur, Bhindaulia, etc. The
applicants claim to be residents of the cluster in the vicinity of Fatima School and Maharaja Agrasen Degree College and even the Mandi Samiti, the local peasants’ market place set up for sale of agricultural produce. The Corporation is persisting with the act of spreading the garbage in open area all over, which is not only per se illegal but also poses an imminent health hazard, being against the 12
standards of sanitation, causes stench in the area and gives rise to breeding of flies and mosquitoes. Photographs of various places have been filed on record along with the application to show that indiscriminate, illegal and unscientific dumping of municipal solid waste is being done adjacent to the NH-24 and at busy roads. Besides being a health hazard, it is bound to cause accidents and will prove hazardous for the commuters as well. The photographs of 22nd/24th July, 2013 show huge heaps of municipal solid waste being thrown on the National Highway itself. The paper clippings of different dates, particularly 20th July, 2013 have been filed along with this application. This applicant has even placed on record Google map photographs showing the waste being dumped in the open at six different places on NH-24, very close to the inhabited area, particularly educational institutions, markets, residential colonies, etc. 11. Besides all these applications, another application, being M.A. No. 710 of 2013 in Application No. 185/2013 was filed stating that the Municipal Corporation is digging 2 to 4 metre-pits on the site in question and doing criminal act of filling the pit with the municipal solid waste removed from the shed and covering it with soil. The act of removing the waste from shed of the plant in the open area is going on day and night. The removal and dumping within the premises of the site is being done in a most unscientific manner and such dumping of waste is bound to contaminate ground water, which is relatively at a higher level, due to leaching. It would contaminate the water and even affect the adjoining water bodies 13
apart from affecting the irrigation water. Annexure A-3 has been filed with this application to show that the average level of underground water at Village Razau Paraspur is 2.5-3.0 metres (post-monsoon) while the pre-monsoon average is 3.5-4.5 metres. This data has been issued by the Sr. Hydrologist, Ground Water Department Division, Bareilly. The indiscriminate dumping of the waste is polluting the area, emitting foul smell, exposing the residents living in the vicinity of the site to various diseases like asthma, emphysema, and in some cases, it could also lead to cancer, thereby causing irretrievable damage to public health. Thus, in this application, it was prayed that the Municipal Corporation, Bareilly, be directed to stop dumping of municipal solid waste at the site, remove the municipal solid waste buried under the soil so that ground water is not affected and develop and restore the site to its original position. It was further prayed to direct the Pollution Control Board to analyse the underground water and the extent of contamination of the soil and water in that area. Along with this application, photographs, right from the period 15th to 18th August, 2013 have been filed, showing digging of the site and creation of big pits in a most unscientific manner where garbage was being dumped. It has also been shown that garbage was being brought at the site even on these days. 12. After hearing the learned counsel of the parties on O.A. Nos. 186 of 2013, 185 of 2013 and 187 of 2013, vide its order dated 5th August, 2013, referring to various facts, appointed Mr. Naveen Chawla, learned Advocate, present before the Tribunal, as Local 14
Commissioner to visit the site in question and report to the Tribunal on the following issues: “(a) Whether the entire Municipal solid waste (municipal solid waste) from the National Highways have been removed or not; (b) Whether the Municipal solid waste (municipal solid waste) is being presently dumped at the sites shown; (c) Where the entire municipal solid waste (municipal solid waste) of the City is being dumped and how it is being collected; (d) What is the status of the site in question i.e. Rajao Parspur at National Highway – 24.”
13. The learned Local Commissioner visited the site in question as well as different areas of Bareilly and submitted his report dated 13th August, 2013. In his report, the learned Local Commissioner has noticed as under: “13. That behind the maintenance store there was some open ground between the store and the boundary wall of Maharaja Agarsen College where municipal solid waste was seen lying in open. At one place it seemed that ground had been dug up and then filled with waste. At another place earth seemed to have been recently dug up, presumably for dumping waste later. 14. That during inspection, I also inquired from Mr. Ranbir Singh, Incharge of the Plant if some entry/exit register for the dumpers was being maintained at the site. He produced two registers, one having entries from 31.03.2013 till 15.06.2013 titled “Solid Waste Plant Rajau-Paraspur Bareilly municipal solid waste Daily Record 31/3/2013”. Photocopy of the first page and the last page of the Register is annexed hereto and is marked as ANNEXURE-A. 15. That the second Register was titled “Month of May13 In Out Book” starting with entries of 18.5.2013 till 14.07.2013. Thereafter there were empty pages. At the end of the Register another heading “municipal solid waste Received Page Sig” had been made and thereafter entries from 16.06.2013 to 20.07.2013 had been entered. Photocopies of the same are annexed hereto and are marked as ANNEXURE-B. 15
16. That Mr. Ranbir Singh thereafter produced an open clip file titled “municipal solid waste”. It had loose papers, which had not been arranged I n any definite order but contained entries from 01.07.2013 to 20.07.2013. Photocopies of entries of 01.07.2013 and 20.07.2013 are annexed hereto and are marked as ANNEXURE-C. 17. That after completing the inspection of the site it is my finding that unless municipal solid waste had been stored in the open ground in front of the sheds, the work of removal of municipal solid waste had been undertaken only a day or two before my visit. It further did not appear that any fresh municipal solid waste had been dumped at the site at least for the past few days. Photographs taken at the site of the plant are annexed hereto and are marked as ANNEXURE-D. 18. That on completing the inspection, I requested Mr. Umesh Gautam, Chanceller, Invertis University to show me the sites mentioned in Clause (b) of the direction passed by this Hon’ble Tribunal as also a general survey of the National Highway leading from Bareilly to Lucknow and from Rampur towards Bareilly. 19. That on such inspection I found a few sites where municipal solid waste had been dumped and in fact there seemed to have been an endeavour made to remove at least some portion of it recently. At one site carcass of dead animals were also found. Photographs of such sites are annexed hereto and are marked as ANNEXURE-E. 20. That I thereafter enquired from Dr. R.N. Giri, the Nagar Swastha Adhikari as to how municipal solid waste is being collected from the city of Bareilly and where it is being presently dumped. I was informed that in the city there are about 160 Dhalos from where municipal solid waste is collected and is being presently dumped at a site in Bhakarganj. He informed me that for this purpose about 150 rounds of dumpers bring the municipal solid waste to this site during the day. The said site is towards Bareilly-Rampur Highway and about half kilometre inside on the left while travelling from Bareilly towards Rampur. The approach road to the site is through a narrow lane/gali with houses constructed on both sides. Photographs of the site are annexed hereto and are marked as ANNEXURE-F. 21. That thereafter, I enquired from Dr. Giri as to whether medical waste is also being dumped at this site. Dr. Giri informed me that the same is being taken to a bio-waste plant at Sarai Tulfi.
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22. That while we were going towards the said plant, I could see some municipal solid waste dumped on the site of the narrow road.”
14. Along with the report of the Local Commissioner, various photographs have been annexed showing indiscriminate dumping of municipal solid waste at the site in question as well as on NH-24 and huge heaps of municipal solid waste lying both inside and outside the sheds at the site. They also show newly dug pits at the site in question, carcasses lying at the dumping site and municipal solid waste lying all along the small road in huge heaps.
The
learned Local Commissioner placed on record the municipal solid waste Register maintained by Respondent No.4 at the site in question. The report also exposes a complete violation of Municipal Solid Wastes Rules as well as unscientific handling of municipal solid waste. The report of the Local Commissioner also shows that the
plant
itself
is
neither
technically
sound
nor
is
being
scientifically maintained. Some of the areas of the plant are already in a broken state. The report also shows that the tin shed is damaged and its slabs are lying in a broken and damaged condition. Now let us proceed to notice contents/reply of the affidavits filed on behalf of the respondents and the respective stands taken by them. 15. Respondent No.4, the Municipal Corporation, Bareilly, in its reply filed in O.A. No. 185 of 2013 took the stand that the Corporation had stopped bringing the municipal solid waste at the site in question and the entire plant had been shut down in
17
compliance with the order and the judgment of the Tribunal dated 28th May, 2013 and 18th July, 2013 respectively. The Corporation had also taken steps to remove the waste. However, the entire waste could not be removed on account of the intervening holidays and monsoon season. The Corporation has filed an application, being Application No.704 of 2013 praying for extension of time for removing the municipal waste. Denying the violation of the interim order dated 28th May, 2013, it is stated that no municipal solid waste was dumped in the open and whatever waste was brought to the MSWM plant, was stored in their Tipping sheds for the purpose of further processing in the MSWM plant. Reliance is also placed on a sentence in the report of the Local Commissioner to say that no new or fresh municipal waste has been brought at the site and that the Corporation has not violated any order passed by the Tribunal. 16. Respondent No.5, the
Mayor of Municipal Corporation,
Bareilly, has filed an independent affidavit stating that he is an educated person, has utmost respect for the rule of law and holds the Courts and the judicial Tribunals in the highest esteem. In relation to his interview, published in the newspaper, the Amar Ujala, it is stated that the statements attributed to him were never made by him and the statement ‘sab kuch pehale se tai tha’ is false, mischievous and misleading. It appears that the reporter, either did not understand the correct import of his interview or has deliberately misquoted him in the said report. As far as the statement attributed to him in the interview that money power has prevailed over the public interest, the respondent admits the 18
correctness thereof but explains that he only wanted to convey that Invertis University had deep pockets to engage the best of lawyers and the said University had been filing/raking up litigation after litigation earlier in the High Court of Judicature at Allahabad and now in the Tribunal. In fact, Invertis University has filed three writ petitions in the High Court challenging the setting up of the MSWM plant. Reference to the money power has been made in the context of the amount of money spent by Invertis University in sponsoring litigation after litigation so as to influence the decision of the Tribunal. In fact, the report of 20th July in the Dainik Jagran and of the same date in the Hindustan clearly brings out the fact that the respondent never made any statement casting aspersions on the Tribunal. According to this deponent, dumping of municipal waste at the site has been stopped and the entire plant has been shut in compliance with the judgment dated 18th July, 2013. To that extent, reliance has also been placed on the report of the Local Commissioner. The stand of the Mayor with regard to removal of the municipal solid waste from the site is identical to that of the Municipal Corporation. After the judgment of 18th July, 2013, according to this respondent, the Chancellor of Invertis University has been making statements and is behaving like a politician rather than an academician. It is stated that the said respondent has not violated any orders of the Tribunal. Along with his affidavit, clippings of the newspapers have been annexed. Vide the Tribunal’s order dated 26th July, 2013 and keeping in view the controversy raised before it, the Tribunal had directed the Editor of the Amar
19
Ujala to be added as Respondent No.6 to the application. In furtherance to the notice issued, the Editor of the daily, Amar Ujala appeared in the court and informed that one Shri Sudhakar Shukla had interviewed the Mayor and had taken notes in his handwriting and all the statements reported in the paper had been correctly reported. In fact, he produced before the Tribunal a notebook containing hand-written notes of Mr. Sudhakar Shukla of the said interview. Interestingly, the Editor also stated that even other newspapers had also reported the said interview subsequent to their publication. The newspaper did not receive any objection, neither in writing nor orally, from the Mayor or his office. In these circumstances, the Tribunal had directed the written comments of the said reporter to be retained in the Tribunal. The Editor of the Amar Ujala also filed a detailed affidavit. In his affidavit, it is stated that the Amar Ujala has a chain of reporters who collect facts or news from the society and provide those facts and news to the Editorial staff who develop those facts into news and publish the same either in the newspaper or on the website or both. The press keeps a vigilant eye on the day-to-day activities and happenings in the society. On 19th July, 2013, Mr. I.S. Tomar had given an interview to one reporter, Mr. Sudhakar Shukla of the Amar Ujala. The notes taken by the reporter were submitted to the Tribunal on 5th August, 2013. Further, on the basis of the interview, a report was published in the Amar Ujala, a Hindi daily, on 20th July, 2013 without any change or modification in any manner. The interview was published verbatim and the contents of the same are true and
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correct. The contents of the interview were correctly and truthfully reported in the paper. Such comments were also corroborated by the news reports of other newspapers, namely the Hindustan, the Dainik Jagran, etc. It is also specifically averred in the affidavit that neither before nor during the pendency of these applications any objection was raised by the Mayor of the Corporation in relation to the publication of the interview. 17. It may also be noticed that the District Magistrate, Bareilly, vide his letter dated 18th July, 2013 addressed to the City Commissioner, Municipal Corporation, Bareilly, had noticed that in compliance with the order dated 28th May, 2013 of this Tribunal, the site was inspected by the Special District Magistrate, Faridpur, to examine the complaint made by the Registrar, Invertis University. Vide his inspection report dated 17th July, 2013, it was reported that 30-40 trolley-waste was dumped outside the shed at a distance of 30-40 metres on the right side entry to the main gate and there also was 20-25 trolley-waste lying at a distance of 40 metres from the main gate of the plant even on 17th July, 2013 and that 50% of waste was still lying outside the shed in the open space. Noticing the prima facie non-compliance with the order dated 28th May, 2013, the District Magistrate required the City Commissioner of the Corporation to ensure compliance with the orders of the Tribunal. 18. When these applications came up for hearing before the Tribunal, there was a serious question raised as to whether the order of the Tribunal has been violated by the Respondents No.4 and 5 or not and whether the municipal solid waste collected at the
21
site was hazardous to human health. Upon hearing the arguments, as already noticed, the Local Commissioner reported violation of the orders of the Tribunal and that the municipal waste was being dumped in a most unscientific manner, violative of the MSW Rules. 19. In the light of the above factual matrix of the case, founded on respective pleadings of the parties, the primary question that arises for consideration of the Tribunal is: Whether Respondents No.4 and 5 have violated the orders of the Tribunal dated 28th May, 2013 and the judgment dated 18th July, 2013? 20. There is no dispute raised before us that either of these respondents were not in full knowledge of the order or the judgment passed by the Tribunal. In fact, the order had been communicated to them by different sources and was widely publicised in Bareily District. The two respondents have taken up the defence that they understood the order of the Tribunal dated 28th May, 2013, as prohibiting them from bringing the municipal solid waste to the site in question and dumping the same only in open area
and that
there was no prohibition against dumping the same in the sheds constructed at the site in question. With regard to the alleged violation of the judgment dated 18th July, 2013, the stand taken is that they had admitted to remove the municipal solid waste from the site in question but because of rains and the intervening holidays, they could not remove the entire municipal solid waste from the site. In this regard, they have even prayed for extension of time vide M.A. No.704 of 2013 and it is also stated that no municipal solid waste was dumped in the open. 22
21. From the above stand taken by these respondents, it is clear that violation of the order is an admitted fact. However, the same is sought to be condoned on the ground of misunderstanding of the order of the Tribunal dated 28th May, 2013 and the judgment dated 18th July, 2013. Thus, it must essentially follow that the Tribunal has to examine whether this contention put forward by the respondent is worthy of credence and is, in essence, correct in law. 22. We have already reproduced above the order dated 28th May, 2013. The order is free of any ambiguity and calls for no two interpretations. There is a clear prohibition in the order prohibiting the Respondent No.4 from dumping any municipal solid waste at the site in question. From the bare reading of the sentence “In the meanwhile, no municipal solid waste shall be dumped at the site in question”
it
is
obvious
that
it
is
incapable
of
any
other
interpretation. There is no scope for carving out any exception to the clear language of the order. We are unable to understand, much less appreciate, the contention raised on behalf of the respondents that the dumping was permitted in the shed though it was prohibited outside the shed at the site in question. This argument is devoid of any merit. 23. Similarly, the judgment dated 18th July, 2013 again was specific in terms and free of any ambiguity. This judgment has also been reproduced supra. In terms of para 49(b) of the judgment, the respondents, particularly Respondent No.4 was restrained from dumping any municipal waste at the site in question. Further, in terms of direction contained in para 49(c), a mandatory injunction 23
was granted against Respondent No.4 to remove all the municipal waste dumped at the site in question within four weeks from the date of the judgment. Para 49(f) of the judgment puts the matter beyond any doubt and it directed Respondent No.4 to dump the municipal solid waste at the approved sites (as under the Bareilly Master Plan 2021) but other than the site in question. Para 49(g) further directed the said respondent to restore the site to its original form and develop the same as per the Bareilly Master Plan 2021.
24. In the reply affidavit, both Respondents No.4 and 5 have admitted the fact that they did not remove the municipal solid waste collected at the site in question. However, they have denied dumping of municipal solid waste after passing of the judgment. According to them, it was because of the rains and the intervening holidays that the Municipal waste could not be removed from the site in question. No details of any kind have been provided in the reply affidavit to show as to on which dates there were such heavy rains during which the activity could not be carried out further and which were the days when there were holidays in that District during which no work could be carried out. Lack of all these details in the affidavits of these respondents clearly shows that they have not come before the Tribunal with clean hands. It is, in fact, the result of a frustrated attempt on their part. 25. It has been stated at the Bar during the course of arguments upon instructions from the officers that nearly 280 tons of municipal solid waste is collected every day in Bareilly. If that be so,
24
it shows that the Corporation is capable of collecting 280 tons of municipal solid waste and bringing it to the site. In that case, there should be no reason as to why they could not remove the entire waste or at least a major part in a period of four weeks. It is obviously lack of intent on the part of the Respondents No.4 and 5 to carry out the orders of the judgment of the Tribunal dated 18 th July, 2013. 26. Now, we will proceed to examine whether the said respondents continued dumping of the municipal waste at the site in question right from 28th May, 2013 and till 18th July, 2013 even after filing of the applications under consideration. As already noticed, there is an admission on the part of the said respondents that the municipal waste was being dumped at the site after 28th May, 2013 though only in the sheds. We have already noticed in some detail that all the applicants have filed various photographs to show that municipal solid waste was being transported and dumped at the site on a large scale. Huge heaps of municipal solid waste were lying in and outside the sheds at the site in question. These photographs remained undisputed on record. From these photographs, it is visible to the naked eye that large scale municipal waste has been dumped in a most unscientific and unregulated manner, much less in consonance with the MSW Rules at the site in question. The shed itself is open from different sides and a part of it is even broken or has come off, thus exposing the entire municipal solid waste open to environment. The applicants have filed with their affidavits, clippings
of
the
newspapers
with
photographs,
showing
25
transportation and dumping of municipal waste at the site in question over the entire period. 27. The extracts of the report of the Local Commissioner, which we have referred to supra also clearly show that huge quantum of municipal solid waste was being dumped at the site in question. The learned Local Commissioner has, inter alia, specifically observed that on the date of his visit and on a visual inspection of the site, it was found that though no municipal solid waste was being dumped at the site, the first shed, out of the five sheds in total, was almost full with municipal solid waste and was, in fact, over-flowing from one side. Thereafter, he proceeded to notice that no segregation of municipal solid waste seemed to have been done at the site. 28.
Another very significant observation made by the Local
Commissioner was that at one place, it seemed that the ground had been dug up and then filled up with waste. At another place, earth seemed to have been recently dug up, presumably for dumping the waste.
The
third
and
the
most
important
aspect
of
the
Commissioner’s report related to noticing the two registers – one having entries from 31st March, 2013 till 15th June, 2013 and the other from 18th May, 2013 to 14th July, 2013. These registers were showing “In Out Book” of the municipal waste that had been brought to the site in question. They specifically mentioned about receiving the municipal solid waste for the period specified therein. From these documents, which are maintained by Respondent No.4 itself, it appears that these registers give the names of the drivers,
26
GW, TW and NW, probably standing for Gross Weight, Trolley Weight and Net Weight respectively of the municipal solid waste received along with the date. On 21st June, 2013, 19 vehicles had brought municipal solid waste at the site in question. On 14th July, 2013, 17 trolleys were stated to have been brought at the site in question at different intervals from 8.00 a.m. to 10.40 a.m. From 16th June, 2013 to 20th July, 2013, huge quantities varying between 59950 kg. to 2,13,455 kg. of municipal solid waste had been brought and dumped at the site in question. Another register shows that on 20th July, 2013 itself, nearly 30 vehicles had come in from 8.20 a.m. to 11.25 a.m. and had dumped huge quantities of municipal solid waste at the site in question. Thus, the report of the Local Commissioner clearly demonstrates that the municipal waste had been regularly brought to the site in question and dumped thereupon. The report of the Local Commissioner clearly establishes the fact that huge quantities of municipal solid waste dumped at the site was lying in and outside the sheds in a most unscientific manner. Furthermore, the respondents have even dug up the pits and municipal solid waste was even dumped into those pits. The Local Commissioner also noticed that a chain accelerator machine and JCB machine were working in the shed to collect the municipal solid waste on one side of the shed. The report and the photographs annexed therewith further specifically show that huge quantity of municipal solid waste had been thrown alongside the NH-24 and that even animal carcasses were lying around at the site in question. The photographs also show that the entire municipal solid
27
waste was unsegregated. In the entire report of the Local Commissioner, it is not specifically noticed nor the photographs annexed to the report show that any municipal solid waste was being transported outside the site. The letter dated 18th July, 2013 of the District Magistrate referred to above, also clearly establishes that the dumping of municipal solid waste at the site in question was going on, despite the orders passed by the Tribunal. The site in question
was
inspected
by
the
SDM
and
thereafter
the
Commissioner of the Corporation was duly informed of such violation and unscientific dumping of the municipal solid waste at the site in question. Despite this letter from a higher authority in the district, no effective steps were taken by Respondents No.4 and 5 to ensure compliance with the orders of the Tribunal. 29. Thus, there is direct and unquestionable evidence to show that the order of the Tribunal dated 28th May, 2013 and the judgment dated 18th July, 2013 have been violated, that too intentionally and with full knowledge, by Respondents No.4 and 5. This evidence is in the form of newspaper clippings, photographs, report of the Local Commissioner, affidavits of the applicants and the letters exchanged between the District Magistrate’s office and the Commissioner, Municipal Corporation, Bareilly. It was open for the respondents to rebut the said evidence by cogent and reliable evidence. However, they have practically admitted the violation of the orders but, as noticed above, have offered explanations which are not only unreliable
but
even
unsustainable.
Firstly,
the
excuse
of
misunderstanding an order would arise only if there was any
28
apparent ambiguity in the language of the order. Secondly, no details of the dates as to when it rained or when there were holidays in the district during the period of four weeks granted to them for removal of municipal solid waste, have been stated in the affidavits at all. The explanation offered by these respondents is falsified from the very documents which show that rather than removing the municipal solid waste from the site and dumping the same at an identified site in accordance with the Bareilly Master Plan, 2021 they were still bringing municipal solid waste in large quantities at the site in question and were dumping it in an open area and that too in a most unscientific manner. 30. Besides committing the apparent violation of the orders of the Tribunal, these respondents are responsible for polluting the environment inasmuch as the dumping of such huge amount of municipal solid waste in the open, that too in a most unscientific manner, is bound to result in stinking smell or odour as well as become a cause for breeding of mosquitoes and causing serious health hazards to the residents living in the adjacent areas. Even the pits have been dug up and municipal solid waste dumped in these pits is bound to leach into the underground water and contaminate the same. These harmful effects caused due to the irresponsible acts and deeds of the respondents cannot be disputed. 31. Now, we may deal with the allegations made in the applications with regard to Respondent No.5 making irresponsible statements in a press interview held by the reporter of the Amar Ujala on 19th July, 2013, which was published in various newspapers on 20th
29
July, 2013. The statements made in the interview to the reporter, Shri Sudhakar Shukla, are certainly irresponsible and entirely uncalled for and least expected, particularly from a person of the stature of a Mayor of the Municipal Corporation. The affidavit of the Editor of Amar Ujala and Shri Shukla’s hand-written notebook maintained in the normal course of his business do establish that such statements were made by Respondent No.5 to the press and were widely reported by different newspapers. 32.
In the reply-affidavit filed by Respondent No.5, part of such
statements is, in fact, admitted while for the other part, it is stated that he never made that statement to the press. In regard to the first statement in relation to the use of money power, it is stated that what he meant was that Invertis University was a body of great means and had engaged senior lawyers to argue the matter. As far as his statement that everything was pre-fixed, he has completely denied making it. 33. The entire evidence on record clearly shows that such irresponsible statements have been made by Respondent No.5. The explanation tendered by this respondent is not worthy of credence. A cumulative reading of the records clearly makes out a case for initiation of criminal contempt proceedings against the said respondent.
However,
the
said
respondent
has
tendered
unqualified and unconditional apology right at the threshold of the proceedings and it does not lack bonafides irrespective of the fact that we do not accept the explanation tendered by Respondent No.5 in its entirety. Still we would prefer to accept the unconditional
30
apology tendered by the Mayor, Respondent No.5, and do hope that in future, he would take due care while dealing with the proceedings before the Courts or Tribunals. In fact, in his affidavit, he has stated that he holds the Courts and the Tribunals in high esteem and has the greatest regard for them. 34. Now, we are only left with the question as to what are the consequences in law for violation of the orders of the Tribunal dated 28th May, 2013 and 18th July, 2013, committed by Respondents No.4 and 5. 35. In terms of Section 19 of the National Green Tribunal Act, 2010 (for short ‘NGT Act’), the Tribunal is not bound by the procedure laid down by the CPC and can evolve and regulate its own procedure which shall be guided by the principles of natural justice. Moreover, all proceedings before the Tribunal are deemed to be ‘Judicial proceedings’ within the meaning of Sections 193, 219 and 228 for the purposes of Section 196 of the Indian Penal Code and the Tribunal, is deemed to be a ‘civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. 36. It is clear that the provisions of CrPC and Section 26 of the NGT Act are concerned with the punishment that can be inflicted for failure to comply with the orders of the Tribunal.
In terms
thereof, whoever fails to comply with any order, award or decision of the Tribunal under the NGT Act, shall be punishable with imprisonment for a term which may extend to three years or with
31
fine which may extend to Ten crore Rupees or with both and in case the failure or contravention continues, with additional fine which may extend to Rs.25,000/- for every day during which such failure or
contravention
continues
contravention or failure.
after
conviction
for
first
such
It is further provided that in case a
company fails to comply with any order or award or a decision of this Tribunal under the NGT Act, such company shall be punishable with fine which may extend to Rs.25 crores and in case the failure or contravention continues, with additional fine which may extend to One Lakh Rupees for every day during which such failure or contravention continues after conviction for the first such failure or contravention. 37. Besides the powers spelt out under Section 26 of the NGT Act, Section
15
empowers
the
Tribunal
to
provide
relief
and
compensation to the victims of pollution and other environmental damage arising under the enactments specified in Schedule 1 (including accidents occurring while handling any hazardous substance); for restitution of the property damaged; and for restitution of environment of such area or areas, as the Tribunal may think fit. Orders in relation to compensation and restitution of property and environment as contemplated under Section 15 (1) of the NGT Act shall be in addition to the relief granted under the Public Liability Insurance Act, 1991.
In other words, the
jurisdiction of the Tribunal to punish for violation of its orders is in relation to the power for ordering payment of compensation and/or restoration of property or environment, as the case may be. The 32
extent of jurisdiction exercisable by the Tribunal would depend upon the facts and circumstances of a given case. 38. The Tribunal is required to regulate its own procedure which should be in consonance with the principles of natural justice. The provisions and the procedure prescribed under the CPC is not stricto sensu applicable or binding upon the proceedings before the Tribunal but the provisions of the CPC, in so far as they are in conformity with the prescribed procedure under the NGT Act, could be brought in aid (and the principles of the CPC) in general can be applied to the proceedings before the Tribunal.
Following this
settled principle, it is obvious that the provisions of Order XXXIX Rule 2A of the CPC could be attracted wherever the circumstances so call for.
Thus, Respondents No. 4 and 5 and the violations
committed by them can be dealt with in terms of the provisions of Section 26 read with Section 15 of the NGT Act and Order XXXIX Rule 2A and Section 151 of the CPC. 39. In relation to the orders of the Tribunal, Section 25 of the NGT Act vests it with the powers of a ‘civil court’ and the order or decision of the Tribunal shall be executed as a decree of a civil court, that is, to say that all powers of execution under the CPC are specifically vested in the Tribunal for execution of its award, order or decision. In relation to execution of a decree, the civil court is vested with the power of attachment of property, arrest and detention in the civil prison and to deal with the question of resistance to execution of a decree. As such, all these powers could be deemed to be vested with the Tribunal. In the present case, both 33
the orders dated 28th May, 2013 and 18th July, 2013 were passed in the court in the presence of the learned counsel appearing for the parties and in fact even the officers of the Respondent-authority. The respondents have not raised any question, and rightly so, with regard to knowledge or contents of the orders of the Tribunal. The flouting of an order which has the effect or consequence of an injunction will touch the jurisdiction of the Court of the Tribunal for application under Order XXXIX Rule 2-A of the CPC. The Tribunal has to ensure that the orders passed by it must be effectively and fruitfully implemented and should not be permitted to be frustrated by any party as all these relate to the matters of environmental significance and public health at large. The Courts have also taken a view that the provisions of Order XXXIX, Rule 2A would be given effect to even in preference to the Contempt of Court Act, 19 . Once an order is passed by the Tribunal, it is not open to a party to go behind the order either by looking into the pleadings of the Tribunal or the mind of the Presiding Officer. The order must be construed on its plain language and all concerned are under an obligation to ensure implementation of the order in question. It is equally true that the object of passing such an order is not to punish a person for disobedience of injunction order but to ensure the enforcement and compel the party to act according to the injunction. An application under Order XXXIX, Rule 2A of the CPC is maintainable only when there is disobedience of any injunction granted or other order passed under Order XXXIX, Rule 1 or 2 or breach of any terms on which injunction was granted or order was made [(Food
34
Corporation of India v. Sukh Deo Prasad 2009(4) SCALE 38; Sarkar Code of Civil Procedure, 11th Ed.)] 40. The orders passed by the Tribunal have been passed to protect environment and public health both. They were passed upon due deliberations and taking into consideration various aspects of the case. Once such an order was passed, it was expected of the respondent-authorities to carry out the instructions issued by the Tribunal expeditiously without demur or protest. It is not open to a party to offer any reservations in regard to implementation of the order on the plea of its own understanding of the order which, in fact, in the facts of the present case, is in direct conflict with the language of the order and its essence. The Supreme Court, in the case: of Patel Rajnikant Dhulabhai & Anr. v. Patel Chandrakant Dhulabhai & Ors. [AIR 2008 SC 3016] held as under: “53. In Anil Ratan Sarkar and Ors. v. Hirak Ghosh and Ors. 2002CriLJ1814 , this Court held that the Contempt of Courts Act has been introduced in the statute-book for securing confidence of people in the administration of justice. If an order passed by a competent Court is clear and unambiguous and not capable of more than one interpretation, disobedience or breach of such order would amount to contempt of Court. There can be no laxity in such a situation because otherwise the Court orders would become the subject of mockery. Misunderstanding or own understanding of the Court's order would not be a permissible defence. It was observed that power to punish a person for contempt is undoubtedly a powerful weapon in the hands of Judiciary but that by itself operates as a string of caution and cannot be used unless the Court is satisfied beyond doubt that the person has deliberately and intentionally violated the order of the Court. The power under the Act must be exercised with utmost care and caution and sparingly in the larger interest of the society and for proper administration of justice delivery system. Mere disobedience of an order is not enough to hold a person guilty of civil contempt. The element of 35
willingness is an indispensable requirement to bring home the charge within the meaning of the Act. 54. In Commissioner, Karnataka Housing Board v. C. Muddaiah AIR2007SC3100, one of us (C.K.Thakker, J.) observed that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of Law is not complied with or is ignored, there will be an end of Rule of Law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. Upholding of such argument would seriously affect and impair administration of justice.”
41. Disobedience to the orders of the court is an essential feature of rule of law which itself is a part of our Constitutional scheme. The Supreme Court in In Re: Arundhati Roy (Narmada Bachao Andolan case) [(2002) 2 SCC 343], held as under: “1. 'Rule of Law' is the basic rule of governance of any civilised democratic policy. Our Constitutional scheme is based upon the concept of Rule of Law which we have adopted and given to ourselves. Everyone, whether individually or collectively is unquestionably under the supremacy of law. Whoever the person may be, however high he or she is, no-one is above the law notwithstanding how powerful and how rich he or she may be. For achieving the establishment of the rule of law, the Constitution has assigned the special task to the judiciary in the country. It is only through the Courts that the rule of law unfolds its contents and establishes its concept. For the judiciary to perform its duties and functions effectively and true to the spirit with which it is sacredly entrusted, the dignity and authority of the Courts have to be respected and protected at all costs. After more than half a century of independence, the judiciary in the country is under a constant threat and being endangered from within and without. The need of the time is of restoring confidence amongst the people for the independence of judiciary. Its impartiality and the glory of law has to be maintained, protected and strengthened. The confidence in the Courts of justice, which the people possess, cannot, in any way, be allowed to be 36
tarnished, diminished or wiped out by contumacious behavior of any person. The only weapon of protecting itself from the onslaught to the institution is the long hand of contempt of court left in the armoury of judicial repository which, when needed, can reach any neck howsoever high or far away it may be. In Re: Vinay Chandra Mishra (the alleged contemner: 1995CriLJ3994 : 1995CriLJ3994 this Court reiterated the position of law relating to the powers of contempt and opined that the judiciary is not only the guardian of the rule of law and third pillar but in fact the central pillar of a democratic State. If the judiciary is to perform it duties and functions effectively and true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the Courts have to be respected and protected at all costs. Otherwise the very corner-stone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It is for this purpose that the Courts are entrusted with extraordinary powers of punishing those who indulge in acts, whether inside or outside the Courts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalizing it. When the court exercise this power, it does not do so to vindicate the dignity and honour of the individual judge who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded.” 42. At this stage, we may also refer to the contents of the judgment
in
the
case
of
R.S.
Ramachandran
v.
Contempt
proceedings initiated by the Court on its own motion [(1975) ILR Delhi 868], wherein the Court, while referring to the need for vesting Courts with the power to ensure implementation of their orders and its impact on maintenance of law and order, held as under: “(32) These are the pro-conditions for the success of the judicial process and of the administration of 37
justice. It is in this light that it became necessary to endow the court of justice with the power to enforce obedience to its mandates, to protect its officers or to shield those who arc entrusted to its care; without such protection Courts of Justice would soon lose their hold upon the public respect, and the maintenance of law and order would be rendered impossible (Oswald. page 9). Erie, C.J. explained the' reason for these powers : "These powers are given to the Judges to keep the course of justice free; powers of great importance to society, for by the exercise of them law and order will prevail; those who are interested in wrong are shown that the law is irresistible. It is this obstruction which is called contempt and it has nothing to do with the personal feelings of the Judge, and no Judge would allow his personal feelings to have any weight in the matter.” 43. In fact, the obligation upon the Government or public authorities to carry out the orders of Courts or Tribunals in their true spirits and substance rather than raising technical pleas, is even greater, particularly, when such orders are in larger public interest. 44. As already noticed, the orders were passed after hearing the parties at some length and taking into consideration the various affidavits, reply-affidavits and even the documents and photographs relating to the establishment of the
MSWM plant. It was
demonstrated beyond any reasonable apprehension that the plant, firstly, was neither scientific in all its facets nor the site was chosen in
accordance
with
law.
The
environmental
clearance
for
establishment and operation of the plant had not been obtained. The apprehension of the applicants that the respondents will continue to dump municipal solid waste indiscriminately at the site which would cause health hazards with the passage of time, proved to be correct. It has come on record that except dumping municipal 38
solid waste in huge quantities at the site in question, the Corporation had not shown any signs of dealing with the municipal solid waste in a scientific and technically sound methodology. No proper measures had been taken for composting and disposal of the municipal waste. The callousness in flouting of the orders of the Tribunal is further exhibited by these respondents when they started dumping municipal solid waste even without segregation, adjacent to NH-24, thus causing not only environmental and traffic issues but even exposing animals to the danger of consuming plastic. It could not be denied that the site was surrounded by densely populated area including University, Hospital, villages and other buildings. Firstly, the plant has been established in a most unscientific manner and secondly, it was apparently resulting in hazards to public health. We have already noticed that both our orders dated 28th May, 2013 and 18th July, 2013 have been violated with intent and impunity. No effort at all was made to remove the municipal solid waste from the site in question; thus causing great degradation to the environment in and around the site in question. Dumping of municipal solid waste is bound to result in breeding of flies and other vectors which would cause health hazards to the people living in the vicinity, which is bound to produce bad-pungent odour, which would pollute the ambient air quality at the site in question and would make it difficult for the people residing in the vicinity even to breath fresh air with optimum levels of oxygen. The Tribunal’s orders have not only been violated by non-compliance but in fact by intentional acts which were completely opposed to the
39
contents of the orders. The respondents have even dug pits at the site in question and without making proper drainage system in accordance with the MSW Rules and establishing impermeable membrane lining to ensure that the dumped municipal solid waste does not contaminate the underground water. Direct leaching of the dumped municipal solid waste into the ground water would contaminate the underground water to the extent that it would become seriously injurious to the public health. In fact, in pleadings or during the course of arguments, it was not disputed before us that such unscientific dumping of municipal waste is bound to result in health and environmental hazards in different ways. These were acts which were done to completely defy the orders passed by the Tribunal by taking positive actions contrary to the contents and language of the orders. For the entire period, right from 28 th May, 2013 till the end of July, 2013, there exists complete documentary evidence on record by way of affidavits and photographs to show the violation of the orders of the Tribunal. We also find that the respondents had no bonafide intention to carry out the orders of the Tribunal. On the contrary, the respondents did all acts and deeds within their power and might to observe or comply with orders of the Tribunal in their breach. Respondent No.5, is the Mayor of Respondent No.4 while Respondent No.4 has been represented through its Commissioner, Sh. Umesh Pratap Singh.
Both these
respondents are admittedly responsible for carrying on the day-today business of the Nigam. admission thereof.
Their respective affidavits are clear
They have taken a common stand which has
40
been dealt with by us above.
Being responsible for conduct of
business of the Nagar Nigam, both these respondents are liable to be proceeded against in accordance with law.
That is how the
Tribunal had issued notice to both the respondents on both grounds, i.e. disobedience of order of the Tribunal as well as for making uncalled for statements in the Press Conference, as is evident from the order dated 26th July, 2013. Thus, we have no hesitation in holding that both the Respondents No. 4 and 5 have violated the orders of the Tribunal and thus have committed offence which would invite the rigours of Section 26 of the NGT Act read with Order XXXIX, Rule 2-A of the CPC. The violation of the orders of the Tribunal has resulted in environmental degradation, health hazards and prejudice to the public health at large. Another very important aspect of this case is the restitution of environment at the site in question and its surroundings. Adverse impacts of this municipal solid waste have been dealt with by us in great detail in the judgment dated 18th July, 2013 as well as in this order. Before it results in irretrievable damage to environment and public health, we must also take recourse to passing certain directions with reference to the ‘precautionary principle’ aspect. In other words, the Tribunal must not only punish the person violating the orders but also should direct taking all measures which are necessary for the purpose of restoration of environment and precautions which would help in preventing further degradation of environment and damage to public health. Still another aspect of the case is that the polluter should pay for the pollution caused by 41
him and for the period during which such pollution was caused. Contamination of water, pollution of ambient air, release of pungent smell and breeding of flies and other vectors resulting in various diseases are the inevitable after-effects of violation of the orders of the Tribunal by the respondents-authorities as well as their actions, which were in direct conflict with the orders of the Tribunal. These included dumping of municipal solid waste on the National Highway-24 and digging of pits in a most unscientific way, as aforestated. Consequently, the respondents must incur the liability for violations on their part in relation to these three aspects. This is the very premise and scheme of Sections 15 and 17 read with Section 26 of the NGT Act. Environmental Pollution has been caused, is an undisputable fact. However, its extent may lose its significance in view of the admitted position on record.
A polluter must pay for its acts and deeds,
resulting in pollution.
As already held above, the permission as
required under law was not obtained by the respondent-Nigam (consequently by the respondents no.4 and 5).
The dumping of
municipal waste was being done in a most unscientific manner and had commenced the construction of the plant and dumping of municipal waste without prior permission even of the Pollution Control Board. We have also found that grant of permission by the Board at a subsequent stage was an arbitrary exercise of power. Thus, for causing pollution over the long period and particularly when it was in violation to the orders of the Tribunal, we must hold the Nigam liable to pay compensation for restitution and restoration 42
of the environment as well as for damaging the environment. The amount so directed should be used for remedying the wrong as well as to prevent future damage. The report of the Local Commissioner also clearly establishes the pollution resulting from the activity carried out by the respondents no.4 and 5 to contamination of ground water and other environmental pollution. At this stage, it may be appropriate for us to refer to a recent judgment of the Supreme Court in the case of M/s. Sterlite Industries India Ltd. v. Union of India and Ors. (2013)1 All India NGT Reporter page 35, where the Hon’ble Supreme Court having found that the Sterlite had operated without renewal of the consent of the Tamil Nadu Pollution Control Board for a fairly long period and having polluted the environment held the Sterlite Industries liable for payment of compensation to the extent of Rs.100 crores.
We follow this
principle and apply it to the present case without any legal impediment. Following this principle, we are of the considered view that a sum of Rs.1 lakh per day would be an appropriate direction for restoration of the site to its original condition as well as on account of preventing further damage to the environment. For this purpose, we would also appoint a Committee which shall ensure compliance and proper spending of the amount so deposited. 45. Having given our serious consideration to the matters and issue before us and in view of the findings recorded supra, we pass the following orders and directions: (i) We accept the unconditional apology tendered by the Respondent No.5 for making such undesirable remarks in his 43
Press interview and therefore decline to initiate criminal or other proceedings against him for bringing disrepute to the Tribunal and committing contempt of the Tribunal. The notice issued and the proceedings against him to that extent are hereby dropped. (ii)
For intentionally violating the orders dated 28th May,
2013 and 18th July, 2013, Dr. I.S. Tomar, Mayor and Sh. Umesh Pratap Singh, Commissioner, Municipal Corporation, Bareilly, are punished with civil imprisonment till rising of the court and payment of Five lakh Rupees each. (iii)
For causing degradation to environment and injury to
public health for the period from 28th May, 2013 to 27th July, 2013, the Municipal Corporation of Bareilly shall pay a sum of One lakh Rupees per day. (iv)
We direct that all amounts payable by the respondents
under this order would be deposited with the Deputy. Commissioner, Bareilly, as Chairperson of the Committee constituted under this order and all these amounts shall be utilised for complying with the directions contained in this order and if any amount still remains unspent, the same shall be used for setting up of an STP at an approved site in accordance with law. (v) We constitute a Committee consisting of the following:a. Deputy Commissioner, Bareilly- Chairperson b. Member Secretary, U.P. Pollution Control Board 44
c. Director (Public Health), Government of U.P. d. One representative of the Ministry of Environment and Forests (MoEF), being an Expert to be nominated by the Secretary, MoEF.
(vi)
Respondents
No.4
and
5 shall remove
the entire
municipal solid waste from the site in question within four weeks from the date of passing of this order and restore the site and environment to its original condition (as it existed prior to the establishment and operation of the MSWM plant). (vii) We also reiterate our direction that no municipal solid waste shall be dumped at the site in question so as to prevent environmental pollution, contamination of underground water and injury to the public health. The said respondents shall dump the municipal solid waste only at the site which has been so approved and earmarked under the Master Plan of Bareilly, 2021, that too in a most scientific manner, and at no other place. (viii) The pits that are dug at the newly designated site for dumping of municipal solid waste shall be prepared in accordance with the MSW Rules and with all scientific measures including laying of impermeable membrane lining. 46. We must notice the able assistance rendered by the learned counsel appearing for the parties. Except for the contentions dealt by us above, no other contention was raised before us by any of the parties to these proceedings.
45
47. With the above orders, all the three applications (O.A. No. 185/2013, 186/2013 and 187/2013), as well as the application for extension of time (M.A. No. 704/13) and application for directions (M.A. No. 710/13) stand disposed of.
Hon’ble Mr. Justice Swatanter Kumar (Chairperson) Hon’ble Mr. Justice U.D. Salvi (Judicial Member) Hon’ble Dr. D.K. Agrawal (Expert Member) Hon’ble Prof. (Dr.) P.C. Mishra (Expert Member) Hon’ble Dr. R.C.Trivedi (Expert Member) New Delhi October 24, 2013
Order dated 24th October, 2013
Judgment pronounced Learned
counsel
appearing
for
the
Respondents/
Contemnors have placed on record the Order passed by the Bench of Hon’ble
Supreme Court of India dated
13 th
September, 2013. The Hon’ble Supreme Court has ordered vide the said interim order in Civil Appeal No.7215 of 2013: Municipal Corporation Bareilly Vs. Invertis University & Ors. that the directions contained in Paragraph 49 of the impugned 46
Judgment i.e. Judgment dated 18th July, 2013 in Application Nos. 86 of 2013, 99 of 2013 and 100 of 2013 shall remain stayed. The learned Counsel appearing for the Respondents further make an oral prayer for exemption of appearance of the Respondents/Contemnors. For the reasons explained at the bar we exempt personal appearance of the Respondents for today. It is apparent from the record and infact conceded before us that neither the Hon’ble Supreme Court of India has stayed the proceedings before the Tribunal in Application No. 185 of 2013, 186 of 2013 and 187 which were filed after the pronouncement of the judgment in the present cases nor the Applicant has even made any prayer before the Hon’ble Supreme Court of India for staying the proceedings or the judgment to be passed by the Tribunal in these proceedings which includes Applications for contempt as well as for direction. It may be noticed that these Applications have been filed on 27th July, 2013, 23rd July, 2013 and 31st July, 2013 respectively for action against the contemnors due to violation of the Orders prayed for inter alia order dated 28th May, 2013 passed prior to the final judgment of the Tribunal dated 18 th July, 2013.
Even the judgment in these cases had been
reserved on 02nd September, 2013 prior to the Order of the Hon’ble Supreme Court of India dated 13th September, 2013.
47
Learned Counsel appearing for the Applicant submits that the
Hon’ble Supreme Court has not even stayed the
seeking of Environmental Clearance by the Project Proponent much less the present Petition. In
the
circumstance
aforenoticed
we
proceed
to
pronounce the judgment in Original Application No. 86 of 2013 and in M.A. No 614 of 2013 which is an Application filed by the Respondents themselves praying for extension of time. However, to put the matter in clear terms we are of the considered opinion that the judgment pronounced today shall be subject to and shall not take effect till the orders in that regard are passed in Civil Appeal No.7215 of 2013: Municipal Corporation Bareilly Vs. Invertis University & Ors.
by the
Hon’ble Supreme Court. Subject to this we declare the judgment. The above order shall form part of the judgment pronounced. With the above orders, all the three applications (O.A. No. 185/2013,
186/2013
and
187/2013),
as
well
as
the
application for extension of time (M.A. No. 704/13) and application for directions (M.A. No. 710/13) stand disposed of.
Hon’ble Mr. Justice Swatanter Kumar (Chairperson)
Hon’ble Mr. Justice U.D. Salvi (Judicial Member) 48
Hon’ble Dr. D.K. Agrawal (Expert Member)
Hon’ble Prof. (Dr.) P.C. Mishra (Expert Member) Hon’ble Dr. R.C.Trivedi (Expert Member)
49
