before the national green tribunal … 6. the amar ujala, through its chief editor, 19, civil lines,...
TRANSCRIPT
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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)
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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. ……………………….Applicants Versus
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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
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JUDGMENT
PRESENT :
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)
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 18th
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 18th July,
2013 requesting compliance of the order of the Tribunal dated 28th
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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
21
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
22
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.
23
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
24
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,
25
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 18th
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
26
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,
27
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
28
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
29
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
30
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
31
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
32
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 after conviction for first such
contravention or failure. 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
33
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
34
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
35
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
36
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
37
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
38
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
39
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
40
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 28th 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-to-
day business of the Nigam. Their respective affidavits are clear
admission thereof. They have taken a common stand which has
41
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
42
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 afore-
stated. 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
43
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
44
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
45
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.
46
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 13th
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
47
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 18th
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.
48
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)
49
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)