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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH

NEW DELHI …………..

APPLICATION NO. 86 OF 2013

In the matter of:

1. Rayons-Enlighting Humanity 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. …………...Respondents

Counsel for Applicants :

Mr. Raj Panjwani, Sr. Advocate and Mr. Aagney Sail, Advocate for Applicants

Counsel for Respondents :

Mr. Neelam Rathore, Advocate for Respondent No.1 Mr. Savitri Pandey, Advocate for Respondent No.3 Mr. Daleep Kumar Dhayani, Mr. Pradeep Misra, Advocates for Respondent No.3 Mr. Anil Nag, Advocate for Respondent No.4

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APPLICATION NO. 99 OF 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

…….Respondents

Counsel for Applicants :

Mr. Sanjay Parikh, Advocate with Mr. Rahul Choudhary

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

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APPLICATION NO. 100 OF 2013

In the matter of :

1. Jyoti Mishra, W/o Sh. Yogesh Pandey, Village Rajau 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 Rajau 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

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.

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5. Bareily Developmnt Authority,

Through Chairman, Bareilly-243001, U.P.

6. Municipal Corporation, Bareilly Through Commissioner Nagar Nigam Office, Bareilly-243001, U.P.

…….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

JUDGMENT

PRESENT :

Hon’ble Mr. Justice Swatanter Kumar (Chairperson)

Hon’ble Mr. U.D. Salvi (Judicial Member)

Hon’ble Dr. D.K. Agrawal (Expert Member)

Hon’ble Dr. G.K. Pandey (Expert Member)

Hon’ble Dr. R.C.Trivedi (Expert Member)

Dated : July 18, 2013

JUSTICE SWATANTER KUMAR, (CHAIRPERSON):

1. The State level Environmental Impact Assessment Authority,

(for short ‘SEIAA’), in its meeting dated 19th December, 2012

agreed with the recommendations of the State Environmental

Appraisal Committee, (for short ‘SEAC’) and declared that the

Nagar Nigam (Municipal Corporation), Bareilly, Respondent No.4,

was not required to take Environmental Clearance (for short “EC”)

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for Municipal Solid Waste Management (for short “MSWM”)

Project, Bareilly, under the EIA Notification of 2006 (for short the

‘Notification’). Vide its letter of the same date, it so informed the

Nagar Nigam, Bareilly. Inter alia, the legality, correctness and

validity of this letter dated 19th December, 2012 have been

challenged in the following applications:

(i) In Application No.86 of 2013, the petition filed by

Rayons-Enlighting Humanity, a Society registered under

the Society Registration Act, 1860, it has prayed that the

above letter dated 19th December, 2012 be quashed, and

that the Ministry of Environment and Forests (for short

‘MoEF’), be directed to review the Municipal Solid Waste

Management Rules, 2000 in the light of the judgment of

this Tribunal dated 11th October, 2011, passed in

Original Application No. 2 of 2011; Respondents No.2

and 3, the Uttar Pradesh Pollution Control Board, and

SEIAA respectively, should be directed to initiate the

process of seeking EC in terms of the Notification for the

MSWM project of Respondent No.4, the Nagar Nigam,

Bareilly and also that Respondent No.4, the Municipal

Corporation, Bareilly, be directed to take the same (EC)

from the appropriate authority.

(ii) In Application No.99 of 2013, the Invertis University has

prayed for quashing of the letter dated 19th December,

2012 as well. It is further prayed that Respondent No.4

be directed to shift the site of the MSWM from the

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present site in Bareilly to any other appropriate site.

Thirdly, it has prayed for implementation of the

Tribunal’s order dated 11th October, 2011 passed in

Application No.2 of 2011; and that, the area should be

restored free from any contamination arising out of the

Solid Waste Management Plant, landfill etc. Finally, it is

prayed that the letter dated 19th December, 2012 of

SEIAA be quashed.

(iii) In Application No.100 of 2013, a group of residents of

Village Razau Paraspur, Bareilly, has prayed that since

the project in question requires EC under the EIA

Notification of 2006, no activity should be permitted to

be carried out at the site in question without seeking

such clearance. The applicants also have prayed that the

communication dated 19th December, 2012 is contrary

to the EIA Notification and the Circular dated 15th

January, 2008 of the MoEF. Lastly, they have prayed for

stay of the construction at the site as well as for

awarding compensation and damages to all the persons

who have suffered physically, mentally and financially

due to illegal construction of the said project.

2. All these three applications make somewhat common prayers

in relation to the very same MSWM project, that is sought to be

established by Respondent No.4 in village Razau-Paraspur,

Bareilly. As such, all these applications raise common questions of

law, on similar facts and even their prayers are, to some extent,

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identical to one another. We propose to dispose of all these three

applications by a common judgment.

FACTS

3. It is not necessary for us to notice the facts, as stated in each

of these petitions. Primarily, we would refer to the facts, as given in

Application No.86 of 2013. As already noticed, the applicant is a

registered society under the Society Registration Act, 1860. It is

averred that this society is formed to encourage safeguarding of the

environment and other human values in the younger generation

and has been carrying on various activities at the school as well as

other levels in furtherance of plantation, water conservation, water

harvesting, etc. As the applicant is more particularly associated

with the students and young generation, it has closely been

following the developments pertaining to the setting up of the

MSWM at Village Razau Paraspur, in Bareilly. They claim to have

made various representations to the higher authorities, and even

raised a protest in March, 2012 but in vain. Several village

Pradhans signed a memorandum against locating the project in the

vicinity of Village Razau-Paraspur. The MSWM project, as shown

vide Annexure A to the application, is very close to Invertis

University, Maharaja Agrasen Institute of Management, SG

Hospital, a water body, other villages and even NH 24. All through,

the Society has opposed the establishment of the project at the site

in question for various reasons and having failed to get redressal of

its grievances at various administrative or executive levels, they

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approach the Tribunal by institution of the present application.

4. On 20th August, 2004, the Bareilly Municipal Corporation,

known as Nagar Nigam, Bareilly, submitted an application to

Respondent No.3, the Uttar Pradesh Pollution Control Board, for

obtaining authorisation for establishment of MSWM plant at Razau

Paraspur under the Municipal Solid Wastes (Management and

Handling) Rules, 2000, (for short the rules). As per that

application, this project was for handling municipal waste and bio-

medical waste and was to include a slaughter house hanging unit.

A project report was submitted with such details to Respondent

No.3. On 3rd January, 2005, a no objection certificate (NOC) was

issued in favour of the Nagar Nigam but only for disposal of waste

of the city. It will be useful at this stage to reproduce the said no

objection certificate. It reads as under:

“In this context, in view of the recommendations received from Regional Office, Bareilly regarding setting up an Integrated Mechanised Composting Plant at property bearing No. 161, Khasra No. K/045, Annexed Gazette No. 5482 (B) 11-5-11(23)-76, Lucknow, dated 03.11.1977 at Village Razau Paraspur, Tehsil-Faridpur, District-Bareilly, total area admeasuring 21.20 acres, we hereby issue, in principle, No Objection Certificate for disposal of 500 tonnes waste per day, on the following terms –

1. The site demarcated in Bareilly Master Plan-2021 shall be used for City Solid Waste Management site.”

2. Municipal Corporation shall comply the terms by word as enumerated in Municipal Solid Waste Management (Management and Handling) Rules, 2000 and Municipal waste shall be managed in terms of guidelines, as provided in Schedule-2.

3. Landfill site shall be prepared as per landfill site specifications provided in Schedule-3.

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4. The facility for municipal waste management shall be developed as per standards provided in Schedule-4.

5. Annual progress/Assessment Report Form-2 [Site-4(4)] must be submitted on the due dates.

6. Municipal Corporation shall comply with the terms by word as enumerated in Municipal Solid Waste Management (Management and Handling) Rules, 2000 and Draft Report and specifications shall be submitted within the period of one year from the date of incorporation to the Board along with annexures and request for authorisation letter.

7. After having assessed the environmental impact assessment of the site, Environmental Impact Assessment Report shall be submitted to the Board.

8. The No Objection Certificate as hereby issued shall be valid for 5 years.

Please note that in case of non-compliance or having not complied with satisfaction of the abovesaid terms & conditions, the Board will cancel the said No Objection Certificate. Board has its rights reserved to amend/cancel the terms of the abovesaid NOC. First compliance report shall be submitted by the Municipal Corporation, Bareilly to the Board upto 3.03.2005 in compliance of specific and general terms of the abovesaid No Objection Certificate. Compliance Report shall be submitted to the Board regularly on due intervals, otherwise No Objection Certificate can be revoked by the Board.”

5. As is evident from the above, this was the NOC for setting up

an integrated mechanised composting plant of 500 tonnes waste

per day capacity at the site in question.

6. On 25th May, 2005, Respondent No.3 had written to

Respondent No.4 that no compliance report was sent by the latter

in furtherance to the NOC dated 3rd January, 2005 and the same

could be submitted within a period of one week there upon. It

appears from the record that no action was taken in furtherance to

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this letter. Respondent No.3, again, vide its letter dated 3rd

August, 2005, wrote to Respondent No.4 that despite issuing the

letter dated 25th May, 2005, no compliance report and progress

report, as per the conditions of the NOC, had been submitted and

no action had been taken by the Municipal Corporation. Again, the

aforesaid request was reiterated. Vide letter dated 24th November,

2005, while referring to all its previous un-acted upon letters,

Respondent No.3 again required Respondent No.4 to submit an

action taken report within one week from the date of that letter.

Years had gone by but still there was no response. Respondent

No.3 was compelled to write another letter on 1st September, 2006

wherein, it was specifically noticed that no construction on the

MSWM facility had been done till that date except for construction

of some staff quarters and Respondent no. 4 was directed to

comply with, various conditions stated in the NOC.

7. In the meanwhile, on 14th September, 2006, the EIA

Notification came into force. As per Entry No.7(i) of the Schedule to

the said Notification, common MSWM facility which was listed in

category ‘B’ required prior EC from the SEIAA. Here, we may

notice that there is no record placed before us which could show

that any effective step, in relation to the project, were taken by

Respondent No.4. Admittedly, no EC was obtained by Respondent

No.4 for carrying out/completion of the MSWM project. In the

meanwhile, MoEF issued a Circular clarifying applicability of the

Notification of 2006 to cases where land had been acquired before

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the EIA Notification of 1994. The said Circular dated 15th January,

2008 reads as under:

“It has been brought to the notice of this Ministry that an interpretation has been taken by some of the State Pollution Control Boards that EIA Notification, 2006 shall not be applicable for the projects for which land was acquired before the EIA Notification,1994. Further, it has been observed that State Pollution Control Boards have issued NOCs/Consent to Establish (CTE) after 14th September, 2006 without advising the project proponent to seek prior EC under EIA Notification, 2006. In this regard, the following clarification is issued-

(i) Since the EIA Notification, 1994 has now been superseded by EIA Notification,2006, all project activities listed under the EIA Notification, 2006 shall require prior environment clearance under the said Notification without linking it to the date of land acquisition, if the project activity has not commenced at the site. (ii) Only such projects listed under EIA Notification, 2006 shall not require environment clearance under the said Notification which were not listed in EIA Notification, 1994 and for which NOC was issued on or before September 14, 2006. (iii) All such projects listed in both EIA Notifications, 1994 and 2006, shall require prior environment clearance irrespective of issue of NOC if the project related activity has not yet commenced at site. The validity of NOC should not be extended without asking the proponent to seek prior environment clearance under the EIA Notification, 2006.

2. In view of the above, it is advised to the State Pollution Control Boards not to grant/extend/revalidate NOC/CTE without advising the proponent to seek environment clearance under EIA Notification, 2006 for the projects which were listed in EIA Notification, 1994 and are now also listed under EIA Notification, 2006 even if they have acquired the land before January 1994. All such projects, which were issued NOC/CTE before

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September, 2006 and listed in both the Notifications, but have not commenced project activities at the site shall not start project activity now without obtaining prior environment clearance under EIA Notification, 2006 even if the land was acquired before January 1994.”

8. On 25th January, 2008, Respondent No.4 issued a notice

inviting tenders for setting up of the MSWM project at Bareilly.

Some clarifications thereto were also issued on 7th March, 2008.

On or about 26th June, 2008, an agreement was signed between

Respondent No.4 and M/s AKC Developers Private Limited for

setting up of the MSWM project at Village Razau Paraspur,

Bareilly.

9. The NOC was issued by Respondent No.2 on 3rd January,

2005 and was valid for a period of five years. Thus, it came to be

expired on 2nd January, 2010. Keeping in view certain exigencies

and other attendant circumstances, Respondent No.4 amended its

agreement dated 26th August, 2008 with M/s AKC Developers Pvt.

Ltd. on 10th March, 2011. After amendment of the agreement with

the company, on 6th June, 2011, Respondent No.4 applied for

authorisation for operating the MSWM project which was,

according to them, under construction at the site in question.

10. The Bareilly Master Plan, 2021 was prepared by the State

Government of Uttar Pradesh on 8th January, 2012 and the site in

question was designated and earmarked for social, cultural and

research based organisational services. Vide letter dated 10th

February, 2012, the Secretary, Bareilly Development Authority,

wrote to Respondent No.4 stating that, according to the Master

Plan 2021, the land use of the project site was for social, cultural

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and research institutions and not for any other activity. Having

received the application dated 6th June, 2011 of Respondent No.4,

after the period of five years, as contemplated in the NOC dated 3rd

January, 2005, Respondent No.3 wrote to Respondent No.4 on 5th

March, 2012 that the application was incomplete, and therefore,

no permission, as requested, could be granted. In this letter, it was

specifically noticed that the period of five years had lapsed and no

action in furtherance thereto had been taken by Respondent No. 4.

It was further noticed that no request had been made by

Respondent No.4 for extension of the NOC. Another important

aspect that was disclosed in this letter for the first time by

Respondent No.3 reads as under:

“Presently, as per EIA Notification 2006 regarding environmental sanction from the Ministry of Environment and Forests, Govt. of India, which is effective from 14th September, 2006, the compulsion for seeking environmental approval has been made compulsory for Solid Waste Management Project. In this context, nothing has also been done by Municipal Corporation, Bareilly. Even no report has been sent to the State Board till date after making an Environment Impact assessment report in compliance of the said No Objection Certificate. At present, many universities and population has been established in surrounding areas of the site and the matter is also pending before the Hon. High Court”

11. In view of this, the application made by Respondent No.4 for

seeking authorisation for operating the MSWM project was

specifically declined. Again, vide its letter dated 11th July, 2012,

Respondent No.2 informed Respondent No.4 that the EIA report be

sent to the Board, which had not been submitted till that date,

without which it would not be possible for the Board to consider

the application for authorisation. This was in response to the letter

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dated 17th March, 2012 of Respondent No.4 to Respondent No.2

that they had appointed M/s Grass Roots and Creation India Pvt.

Ltd. for Rapid Environmental Impact and General Environmental

Assessment Report for operating the said project. Again on 22nd

November, 2012, Respondent No.2 wrote to Respondent No.4

asking for technical and factual remarks as well as reply to the

objections raised by the Invertis University. It specifically directed

R-4 that no construction activity should be carried out until

authorisation was issued.

12. The relevant extracts of this letter read as under:

“In this context, you are further directed that you should not carry out any work for establishing Municipal Waste Management Project at Razau Paraspur for disposal of solid waste of the City until obtaining valid authorisation letter issued by State Board under Rule 4, Sub-Rule (2) of Municipal Solid Waste Management (Management and Handling) Rules, 2000, otherwise you will be responsible for any such violation.”

13. The matter in relation to Respondent No.2 rested. However,

the SEAC, in its meeting dated 11th December, 2012, took the view

that Respondent No.4 was not required to take EC in terms of the

Notification and it communicated the same to SEIAA, Uttar

Pradesh, which had already noticed and accepted the said finding

and vide letter impugned herein wrote to Respondent No.4 on 19th

December, 2012 that no EC was required to be obtained. After all

these years and all of a sudden on 8th January, 2013, Respondent

No.4 wrote to Respondent No.2 to grant extension of NOC dated 3rd

January, 2005. Respondent No.2, vide its letter dated 15th March,

2013 not only extended the validity of the NOC till 31st December,

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2013 while making the terms and conditions of the NOC

applicable, but also vacated the prohibitory order that had been

passed by it vide its letter dated 5th March, 2012 banning all

construction activities. In this letter, it was also informed that the

orders were subject to the Public Interest Litigation pending in the

High Court vide Writ Petition No.51327/2012. Furthermore and

during the pendency of the present petition, Respondent No.2 even

issued authorisation in favour of Respondent No.4 on 28th March,

2013 in response to its application dated 19th March, 2013.

14. It requires to be noticed here that right from the time it was

decided to establish a MSWM plant at the site in question, it has

been a matter of serious litigation before the High Court from time

to time. Right in the year 2001, a Writ Petition was filed in the

High Court by the affected villagers, University and other

institutions. In Writ Petition No. 2089 of 2001, Invertis Institute v.

Nagar Maha Palika, Bareilly, the High Court, vide order dated 18th

January, 2001, disposed of the writ petition noticing various

grievances, and directed Respondent No.1 to consider various

aspects and take appropriate action within four weeks of the order.

In Writ Petition No. 7943 of 2005 by the same Institute, the High

Court observed that even if the site in question had been vested in

the Nagar Nigam and utilised as a dumping ground, even then it

did not give it a licence to create nuisance. The dumping ground

must be maintained and protected so as to ensure that it does not

adversely affect the environment or cause any nuisance to others.

Noticing that the area stood urbanised and the Master Plan and

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sanctioned plans had come into force, it therefore directed that the

dumping ground be shifted if there is no other alternative. The

Public Interest Litigation vide Writ Petition No.5672 of 2012 which

related to the present MSWM project, came up for hearing before

the Chief Justice’ Bench of Allahabad High Court on 21st March,

2012 and the Court noticed that admittedly, the NOC had expired

as the same had not been renewed. Noticing the contention of the

counsel that since conditional NOC had expired, the dispute no

longer survived, the Bench thus passed the following order:

“We are of the view that since the conditional N.O.C. granted in favour of the Corporation, no longer survives, this petition has lost its efficacy and has rendered infructuous. The petition is, accordingly, dismissed as infructuous”.

15. Another Public Interest Litigation No. 51327 of 2012 also

came up before the same very Bench. The Bench passed the

following order on 3rd October, 2012:

“We find that there is no government order for the purpose of installation of Solid Waste Management Plant as yet at the proposed site. However, we are of the view that if it has not been done, it will be done only after obtaining permission from the State Level Environment Impact Assessment Authority. The interim order will continue till the next date of listing.”

16. The Court vide its order dated 19th November, 2012 in civil

Misc. Application No. 335640 of 2012 clarified the afore-mentioned

order to remove any ambiguity. The relevant part of the said order

reads as under: the relevant part of which reads as under:-

“We clarify herein that if no permission is granted with regard to installation of Solid Waste Management Plant by the State Level Environment Impact Assessment Authority, no such work can be carried out. Since the second last sentence of the

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penultimate paragraph the words ‘ ……if it has not been done, it will be done only after obtaining permission from the State Level Environment Impact Assessment Authority’ is incorporated, most likely the respondent has taken the advantage of the situation. Therefore, the order will be read as no work will be carried out without permission of the State Level Environment Impact Assessment Authority”

17. Various other orders had been passed by the High Court and

at no point of time, had the High Court, either directly or impliedly,

permitted the establishment of the MSWM plant at the site in

question. It has to be kept in mind that that till the year 2001, no

work of the project had been carried out at the site in question

when the High Court had passed orders and subsequently directed

that no work could be carried out without specific permission of

the SEIAA, which was never granted. As already noticed, the

authorities concerned, in fact, observed vide their letter dated 5th

March, 2012 that EC was not necessary. It is evident from the

above facts that at no point of time, the Nagar Nigam or its

predecessor had taken permission to carry out any work in relation

to the MSWM plant. In order to answer the principal controversy

arising in the present case, we must, for the purposes of proper

appreciation of the legal and environmental issues involved in the

present case, formulate the following questions and answer them

accordingly:-

(A) Whether the site where the MSWM project has now been constructed is a permissible site in accordance with law.

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18. The project site is one of the most significant facets of any EC

matter and before issuance of NOC for establishment of any

project, more particularly a MSWM project, it has to be first seen

that it does not lead to any environmental damage or public

nuisance. The High Court had even directed the Respondent-

authorities to ensure that even if it is used for dumping, it should

not create any public nuisance and if no alternative is available,

the project should be shifted. These orders of the High Court

related to the dumping site and not construction of MSWM plant.

Obviously, MSWM plant has to meet much more stringent

standards of environmental protection so that once such plant

starts functioning, there is no environmental degradation,

particularly where there are a large number of residential and

institutional areas situated in the vicinity of the project. The letter

dated 3rd January, 2005, the stated NOC, issued by Respondent

No.3 is the backbone of the case advanced on behalf of Respondent

No.4. The condition No.1 of the said NOC, as noticed earlier, states

as under:-

“The site demarcated in Bareilly Master Plan 2012 shall only be used for city solid waste management site”.

19. Further, in terms of the NOC, the land fill site had to be

prepared as per the land fill site specifications provided in

Schedule 3 to the Rules, and the Nagar Nigam was to comply with

the Municipal Solid Wastes (Management and Handling) Rules,

2000 and municipal waste had to be managed in terms of the

guidelines, as provided. There is no dispute regarding the Master

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Plan 2021 being prepared and published. A copy of the Master

Plan has been placed on record as Annexure A.14 by the applicant.

It was termed as Bareilly Master Plan 2021. As per clause 5.1.13.3

of this Master Plan, a total area of 31.88 hectares for different sites

for collection and disposal of solid waste has been proposed. One

site between Lucknow Road to Pilibhit Bypass, the second between

Kathgodam Road and Moradabad Road, the third between

Moradabad Road and Budaun Road, and the fourth between

Budaun Road and Lucknow Road, measuring 2.88, 8.96, 8.84 and

11.20 hectares respectively were provided. In other words, as per

the Master Plan, four sites were provided for collection and

disposal of municipal waste but the site in question was not one of

them. In fact, these four sites were for establishment of MSWM

plants. The respondents have not been able to demonstrate before

us by any cogent and reliable evidence that the site in question

was the site identified for establishment of MSWM plant. Vide letter

dated 10th April, 2013, office of the Joint Director, Bareilly Regional

Planning Division, Urban and Rural Planning Department,

Bareilly, Uttar Pradesh, had written to the Vice-Chancellor, Invertis

University, providing details of disposal centres for the proposed

solid waste in paragraph 3 of the said letter. In this letter, the site

in question had not been indicated as the sanctioned or even the

proposed site for establishment of MSWM plant. Respondent No.4,

while relying upon some reference of the Master Plan, attempted to

justify the selection of the site as a permissible site for MSWM

plant. In fact, they relied upon the notification dated 3rd November,

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1977. Let us examine the notification dated 3rd November, 1977

(Annexure R.11). This notification was issued under Sections 4 and

6 read with Section 17(4) of the Land Acquisition Act, 1974. The

land was acquired for a public purpose, namely for establishment

of trenching ground in Village Razau Paraspur in terms of Section

7. On a plain reading of the notification, it is clear that the land

was never acquired for construction or establishment of an MSWM

plant. It was neither notified as such nor was specified in the

Master Plan as a site for that purpose. Merely because the land

has been acquired for the purpose of using it as a trenching

ground i.e. a dumping area, would not per se satisfy the

requirement that it was a classification of land for the

establishment of an MSWM plant and would deem to be earmarked

for that purpose under the provisions of the Master Plan.

20. Every area has to be developed in accordance with the

provisions of the relevant laws in force and the Master/Zonal Plan

of that area. Every development authority has to notify a Master

Plan. It has to prepare a draft plan, give public notice, invite

objections and thereupon conduct an inquiry and hearing, as

contemplated under the law before it is finalised. Once the

development plan is finalised, then it becomes a statutory

document. The notified plan has a legal sanction and the

provisions contained therein are mandatory. They are incapable of

being altered or varied without following the due process

prescribed in law. The Supreme Court, in the case of NDMC and

Ors. v. Tanvi Trading and Credit Private Limited & Ors. (2008) 8

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SCC 765, took the view that even in terms of guidelines issued in

relation to a new building till finalisation of the Master Plan, all

controls would have statutory force and would be treated as

mandatory and also that such guidelines, so far as consistent with

the Master Plan, would continue to be binding even after coming

into force of the Master Plan. Similar view to the effect that the

Master Plan has the force of law and is mandatory was reiterated

by the Supreme Court in the case of Noida Entrepreneurs

Association v. NOIDA & Ors. (2011) 6 SCC 508.

21. The Municipal Solid Wastes (Management and Handling)

Rules, 2000 were in force when Respondent No.4 had made an

application for obtaining authorisation from Respondent No.2. We

must notice that this application is stated to have been filed under

Rules 4(2) and 6(2) of these Rules. Every municipal authority

within its territory is responsible for implementation of the

provisions of these Rules. Every State Board or the Committee is

responsible for monitoring compliance of the standards regarding

ground water, ambient air quality and the compost quality

including incineration standards as specified in the Schedule.

Application for authorisation has to be filed in Form I and after

following the prescribed procedure, the authorisation applied for

can be issued for a given period. Upon expiry of such period, a

fresh authorisation is required. In terms of Rule 6 of the Rules, the

application has to be considered and monitoring done in

accordance with Schedules 2, 3 and 4 to these Rules. In terms of

Schedule 3, which deals with specifications for land fill sites, site

22

selection by itself is a serious exercise. When a site falls under the

development area, it is the responsibility of the development

authority to identify the land fill site. While considering the land fill

sites, due care has to be taken in relation to prevention of

pollution, the facilities to be provided as well as maintenance of

ambient air quality. These are the various criteria which have to be

examined while locating a site within the ambit and scope of these

Rules.

22. Form I, which had been submitted by Respondent No.4 on

28th August, 2004 incidentally stated about the sites as follows:

“5.1 Processing of Waste (i) Location of site

Two old sites Razau Paraspur5.67 Hectt. & Bakerganj 8.58 Hectt. Both sites are under dispute. Proposal for purchase of New site under the guidance of HUDCO.

5.2 Disposal of Waste (i) Number of Sites identified

Two old sites Razau Paraspur5.67 Hectt. & Bakerganj 8.58 Hectt. Both sites are under dispute. Proposal for purchase of New site under the guidance of HUDCO.

(v) Details of methodology or criteria followed for site selection

Proposal for new site selection as prescribed under the rule of Solid Waste Management-2000.

(vi) Details of existing site under operation

It is a temporary arrangement for dumping of garbage till Central Govt. sponsored scheme operable. Swalanagar in area 1.5 Acre.”

23

23. From the bare reading of the columns of the Form submitted

by Respondent No.4, it is clear that the site was under dispute and

the proposal for purchase of new sites under the guidelines of

HUDCO was under consideration. It was also specifically

mentioned in this Form that agreement was to be finalised after

site selection. In the Master Plan, four sites for MSWM had been

identified and it clearly establishes that these were not the sites

which have been finalised by any of the statutory authorities to be

a fit site for establishment and operation of such a plant. On the

contrary, there were objections from all quarters i.e. institutions,

villagers, authorities and even Respondent No.3 with regard to

issuance of appropriate authorisation for establishment and

operation of such a plant at the site in question. We may also

notice that in terms of Rule 6.2 of these Rules, it was obligatory

upon the authorities concerned to examine the proposal and take

into consideration the views of other agencies like State Urban

Development Department, Town and Council (Country) Planning

Department, Urban Area based Authority and the Ground Water

Board or any such other agency prior to issuance of authorisation.

In the present case, whatever was told by the development

authority has not been taken into consideration at all by

Respondents No.2 and 3 while the views of the Air Force base

authority, which was situated at a short distance, were not even

obtained. In fact, as back as February, 2006, the Station

Commander, Air Force, had written to the Nagar Nigam, objecting

to the construction of the plant near the Aerodome. It was stated

24

that it was in violation of the Aircraft Rules, 1937. Even this

aspect, in relation to the site, was not considered by Respondents

No.2 and 3.

24. The Development Authority and other authorities assigned

with the job of development have to take their decisions which are

in conformity with the regulations and the law. Any decision to the

contrary would be an action extra jus. Laconic result of collective

reading of the Master Plan, the Development Authority Act and

other relevant notifications is that the Development Authority,

Nagar Nigam, the Pollution Control Board and their respective

officers have no power to vary the land use and places prescribed

in the Master Plan, except by amending the Plan in accordance

with law, that too for a proper object and purpose. In the present

case, the land was acquired for trenching ground in the year 1977.

Even this site came under judicial chastisism in the order passed

by the High Court where the High Court, in no uncertain terms,

directed that if no alternative was available, the site should be

shifted. In other words, even using the land as a trenching ground

was not accepted at different quarters. With the passage of time, a

large number of educational institutions, hospitals and colonies

came to be constructed adjacent to the site in question. As already

noticed, no work of the project in question had commenced till the

year 2008 when the tender for construction of MSWM was invited

by Respondent No.4. The Master Plan did not identify this

particular site as a site fit for construction of an MSWM plant

though it specifically earmarked four sites for that purpose. This

25

would apparently mean that the framers of the statutory document

(Master Plan) exercised their wisdom in excluding this location

from the earmarked MSWM sites. Once the Master Plan has come

into force, then no organisation can be permitted to use the site for

establishing a plant which is going to have serious environmental

consequences.

25. It cannot be accepted that even by implication, the site in

question stood approved for the project. This is primarily for the

reason that the Master Plan specifically declares the site in

question to be earmarked for social, cultural and institutional

areas. In furtherance to such specification, a number of

institutional and cultural buildings had come up adjacent to the

site in question. Even in the reply filed on behalf of the

Respondent, it is stated that it was agricultural land and with

permission of the competent authority, it could be used for the

project. No such permission was ever taken nor even applied for.

26. Therefore, we have no hesitation in holding that the site in

question was never earmarked in the Master Plan/Zonal Plan as

an MSWM site and it was not expected of the authorities to

establish such a plant in violation of the law. It is a settled rule

that exercise of power ought not to be destructive of the law in

force. At no point of time, any attempt was made by any

appropriate or competent authority to prescribe changed use of

land of the site in question.

26

(B) NOC dated 3rd January, 2005 – its impact and the conduct of Respondent No.4

27. What was the basis of Respondent No.3 to issue NOC in

favour of Respondent No.4 in the year 2005 is a matter which

remains unexplained. But at this stage, we would proceed on the

premise that Respondent No.3 had the jurisdiction to issue such a

certificate. In the certificate dated 3rd January, 2005, besides

putting a clear restriction that the site has to be demarcated and

should be so provided in the Master Plan 2021 for the purpose of

the project, Respondent No.3 also required Respondent No.4 to

prepare and submit a report to it, after having assessed

environmental impact of the site. This, admittedly, had not been

done till the year 2012. This was a very material condition of the

NOC which, before establishment or commencement of the project,

Respondent No.4 was obliged to comply with. Respondent No.4 was

also required to submit quarterly report to the Board, which again

admittedly, had not been done for all these years. The NOC was a

conditional document and was valid for a period of five years i.e.

till the year 2010. No work of the MSWM project had been carried

out until 2008 when notice inviting tenders for setting up of

MSWM project at Bareilly was issued by Respondent No.4. The

agreement was signed in June, 2008. Apparently, no work was

executed in relation to the MSWM project as the agreement itself is

stated to have been amended and executed on 10th March, 2011.

28. The first report, in terms of NOC, was required to be

submitted by 3rd March, 2005, which admittedly has not been

done even till date.

27

29. In May, 2005, the Board itself had informed Respondent No.4

that the terms and conditions of NOC were not being complied with

and necessary action should be taken within one week thereafter.

This direction had been repeated from time to time, as already

noticed, vide letters dated 3rd August, 2005, 24th November, 2005

and 1st September, 2006, but to no avail. In the meanwhile, the

order of the High Court in relation to the site in question as a

trenching ground was passed. The High Court had passed certain

orders directing not to use the site even as a trenching ground. The

period of five years, as stated in the NOC, had come to an end on

2nd January, 2010. By that time, no application had been moved

by Respondent No.4 for renewal/extension of the NOC nor had any

work of the project been carried out at the site in question. It has

been pointed out in the reply of Respondent No.4 that expenditure

had been incurred on the project after 2005 and prior to 2012 and

thus the project work had started. We will be dealing with the legal

aspect of this contention subsequently, but as a matter of fact, it

should be noticed that the expenditure which had been incurred

even as per the voluminous records filed before us, related only to

construction of drains, staff quarters, etc. The drain which had to

be constructed and on which money is stated to have been spent

by Respondent No.4 was a drain which had nothing to do with the

project in question and was being constructed at a totally different

site and for a different purpose. To put it simply, neither the NOC

had been extended nor any work worth mentioning, in relation to

the construction of the MSWM plant, had been carried out till the

28

year 2012. Respondent No.3 had taken a definite stand that

Respondent No.4 was required to take EC in terms of EIA

Notification of 2006. In fact, vide its letter dated 5th March, 2012, it

had communicated in no uncertain terms, that authorisation for

operating the integrated mechanised composting plant was

declined. Not only this, it was at that point of time that before the

High Court of Allahabad, similar stand was taken by Respondent

No.3 and the High Court had passed the order on 19th November,

2012 that no work could be carried out without obtaining

clearance from the SEIAA. The Board, vide its letter dated 22nd

November, 2012, had also restrained Respondent No.4 from

carrying out any work for establishment of MSWM plant at the site

in question. Therefore, there were court orders as well as orders of

Respondent No.3 prohibiting Respondent No.4 from carrying out

any MSWM project activity right from the year 2010 to 2012. As

already noticed, till 2010, no project activity had at all been carried

out. Thus, the conduct of Respondent No.4 is that, on the one

hand, it did not comply with the conditions of the NOC dated 3rd

January, 2005 while, on the other, it constructed the MSWM plant

in flagrant violation of the orders of the court as well as

Respondent No.3. The Tribunal will have to take into consideration

such conduct of the applicant as it is not conducive to the rule of

fair play and hurts the interests of environment. Another

important aspect of this is that even the Executive Committee of

Respondent No.4 itself did not support this project, particularly,

with reference to the site in question. 12 members of the Executive

29

Committee of Respondent No.4 submitted a detailed representation

on 12th March, 2013 to the Chairman of Respondent No.4

requesting for calling a meeting of the Executive Committee in

terms of Section 89(2) of the Municipal Corporation Act. In that

representation, they emphasised that the site selection was against

the Municipal Solid Wastes (Management and Handling) Rules,

2000. Under these rules, this project should not be set up near a

cluster of habitation. It was stated that there were nearly four

villages situated at a distance of 500 to 1,000 metres of the

location. It was also stated that the MSWM would not even for a

period of five years due to insufficient land available whereas it

should be planned for a period of at least 30 years and should not

be located near the dense rural population surrounding the MSWM

site. They also suggested that besides all this, it was uneconomical

and injurious to public health, and therefore, should be given up

and shifted to an alternate site. It appears from the record that

none of these issues were discussed or deliberated upon at the

appropriate forum of Respondent No.4. Respondent No.3, the

Executive Committee of Respondent No.4 and even the public at

large, particularly from the institutional area, were seriously

opposed to the establishment and operation of the project site in

question. But this did not get any attention of the appropriate

authority at any level.

30

(C) Whether Respondent No.4 was required to take EC in terms of EIA Notification of 2006 and what is the effect of the circular dated 15th January, 2008?

30. As already noticed, Respondent No.4 had obtained an NOC

from Respondent No.3 on 3rd January, 2005 regarding setting up of

an integrated mechanised composting plant. This was valid for a

period of five years. During all these five years, as is evident from

the above quoted facts, nothing was done. Neither any steps were

taken nor were the conditions of the NOC complied with by

Respondent No.4. In the year 2006, a notification was issued by

MoEF providing for EC regulations. The said notification was

issued in exercise of the powers conferred by Sub-section (1) and

clause (v) of Sub-section (2) of Section 3 of the Environment

(Protection) Act, 1986, read with clause (d) of Sub-rule (3) of Rule 5

of Environment (Protection) Rules, 1986. This notification was

issued in supersession of the notification dated 27th January,

1994. In terms of this notification, under clause 2, the projects and

activities which required EC were divided in different categories.

The projects or activities in Category ‘A’ in the Schedule were

required to take EC from the Central Government in the Ministry

of Environment and Forests while those falling under Category ‘B’

were required to take clearance from the State level Environment

Impact Assessment Authority. This clearance was required to be

taken for all projects or activities – new or even modified - and even

if any change in product-mix in an existing manufacturing unit

included in the Schedule beyond the specified range was made. As

per the Schedule under item No.7(i), projects relating to Common

31

MSWM Facility projects fell under Category ‘B’ , and therefore, they

were required to take clearance from SEIAA. In addition thereto, all

general conditions were applicable to such projects. In other

words, it was obligatory upon every project proponent establishing

or operating MSWM unit to take EC from the SEIAA. This was a

statutory requirement and there was no escape from compliance

thereof. A kind of escape route to this statutory compliance was

provided by the circular dated 15th January, 2008. The said

circular reads as under:

“It has been brought to the notice of this Ministry that an interpretation has been taken by some of the State Pollution Control Boards that EIA Notification, 2006 shall not be applicable for the projects for which land was acquired before the EIA Notification,1994. Further, it has been observed that State Pollution Control Boards have issued NOCs/Consent to Establish (CTE) after 14th September, 2006 without advising the project proponent to seek prior EC under EIA Notification, 2006. In this regard, the following clarification is issued-

(i) Since the EIA Notification, 1994 has now been superseded by EIA Notification,2006, all project activities listed under the EIA Notification, 2006 shall require prior environment clearance under the said Notification without linking it to the date of land acquisition, if the project activity has not commenced at the site. (ii) (ii) Only such projects listed under EIA Notification, 2006 shall not require environment clearance under the said Notification which were not listed in EIA Notification, 1994 and for which NOC was issued on or before September 14, 2006. (iii) All such projects listed in both EIA Notifications, 1994 and 2006, shall require prior environment clearance irrespective of issue of NOC if the project related activity has not yet commenced at site. The validity of NOC should not be extended without asking the proponent to seek prior environment clearance under the EIA Notification, 2006.

32

2. In view of the above, it is advised to the State Pollution Control Boards not to grant/extend/revalidate NOC/CTE without advising the proponent to seek environment clearance under EIA Notification, 2006 for the projects which were listed in EIA Notification, 1994 and are now also listed under EIA Notification, 2006 even if they have acquired the land before January 1994. All such projects, which were issued NOC/CTE before September, 2006 and listed in both the Notifications, but have not commenced project activities at the site shall not start project activity now without obtaining prior environment clearance under EIA Notification, 2006 even if the land was acquired before January 1994.”

31. With reference to the said circular, the contention raised on

behalf of Respondent No.4 is that in terms of paragraphs (i) and (ii)

of the said circular, Respondent No.4 was not required to take any

EC.

32. Let us examine the merits of this contention with reference to

the facts of the present case. Under clause (i), all the projects listed

under EIA Notification, 2006 shall require prior EC irrespective of

the date of acquisition of land if the project activity has not

commenced at the site in question. This clause makes obtaining of

EC compulsory if the project activity has not commenced at the

site. In this clause, the expression ‘project activity’ is of

significance. The project activity has to be understood in the

context of its common understanding or common parlance. Here,

activity must have a direct nexus to the projects, as contemplated

under the notification. The expression activity must be read

ejusdem generis to the expression project. There has to be a direct

relationship between the activity and the project. It was the project

of construction and commencement of MSWM plant that required

33

EC from the competent authorities. The construction of staff

quarters per se would not require EC in the facts of the case, as it

might have been sufficient for Respondent No.4 to take clearance,

and get its plans sanctioned, from the competent authorities in

accordance with Master/Zonal Plan. The environment clearance

under the 2006 notification is relatable to entry No. 7(i) of the

Schedule to where a MSWM plant is to be set up. Thus, the activity

must be such which is directly connected with the establishment

of the plant. An activity which has a remote or inconseqential

connection to the project would not be an activity directly

connected with the project so as to fall within the ambit of the

language of the notification.

33. In the present case, the ‘project activity’ must be considered

as an activity which is related to setting up, operating and

maintenance of the MSWM plant. This activity admittedly did not

start till the year 2011 when the agreement for setting up of such

plant was made, subject to amendments between Respondent No.4

and the company which was required to set up the plant. The letter

of the Corporation and orders of Respondent No.3 clearly showed

that no activity had been carried out at the project in any case till

15th January, 2008 when the circular dated 15th January, 2008 of

the MoEF was issued. We may also notice that there were

prohibitory orders passed by the High Court as well as the Board

as late as 2010, prohibiting Respondent No.4 from carrying out

any construction at the site in question. Since no project activity

had been carried out as on the date issue of the circular and

34

subsequently, the question of Respondent No.4 taking benefit of

clause (i) of the circular in relation to exempting it from seeking EC

in terms of the notification did not arise.

34. In order to avoid the application of EIA notification of 2006,

reliance by Respondent No.4 has also been placed on the circular

dated 15th January, 2008. Before we examine the impact of clause

(ii) of the circular dated 15th January, 2008, we must understand

that this circular is a mere exercise of executive power and is not a

statutory document. The EIA notification of 2006 is a notification

having the force of law and is statutory in its contents and nature.

A circular issued by the Ministry in exercise of its executive power

cannot frustrate the operation of a statutory notification. Such a

circular has to be construed harmoniously and to ensure that it

furthers the cause of the statutory notification and does not lead to

an absurd result i.e. where the statutory notification requires EC

to be obtained, the circular cannot wipe out that effect without

amending the statutory notification issued in exercise of the

executive power. A circular can be clarificatory in nature but it

cannot be in contradiction to the statutory notification. The

purpose of such notification is to supplement the gaps, if any, left

by the statutory notification and cannot be construed in a manner

that will completely distort the application of the primary

notification. At this stage, we may usefully refer to the judgment of

the Supreme Court in V.C., Banaras Hindu University & Ors. v.

Shrikant (2006)11 SCC 42 where the Court, while dealing with the

effect of executive instructions held as under:

35

“23. We may notice a similar provision, being Clause 76 of the Bihar Services Code, which reads as under:

Unless the State Government, in view of the special circumstances of the case, shall otherwise determine, a government servant, after five years' continuous absence from duty, elsewhere than on foreign service in India, whether with or without leave ceases to be in Government employ.

(a) The validity of the said Rule came up for consideration before the Patna High Court in Sobhana Das Gupta v. The State of Bihar and Anr. (1974) PLJR 382, wherein the said Rule was struck down relying on Jai Shanker v.State of Rajasthan (1966)IILLJ140SC and Deokinandan Prasad v. State of Bihar (1971) ILLJ 557 SC stating: I may first refer to the decision of the Supreme Court in the case of Jai Shanker v. State of Rajasthan. Regulation 13 of Jodhpur Service Regulation fell to be considered in that case. The aforesaid regulation was:

An individual who absents himself without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority. Considering this regulation Hidayatullah, J. observed: Whichever way one looks at the matter, the order of the Government involves a termination of the service when the incumbent is willing to serve. The Regulation involves a punishment for overstaying one's leave and the burden is thrown on the incumbent to secure reinstatement by showing cause. It is true that the Government may visit the punishment of discharge or removal from service on a person who has absented himself by overstaying his leave, but we do not think that Government can order a person to be discharged from service without at least telling him that they propose to remove him and giving him an opportunity of showing cause why he should not be removed. If this is done the incumbent will be entitled to move against the punishment for if his plea succeeds, he will not be removed and no question of reinstatement will arise. It may be convenient to describe him as seeking reinstatement but this is not tantamount to saying that because the person will only be reinstated by an appropriate

36

authority, that the removal is automatic and outside the protection of Article 311. A removal is removal and if it is punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed, no matter how the Regulation describes it. To give no opportunity is to go against Article 311 and this is what has happened here. It may be mentioned that this case arose out of a suit where a declaration was sought that the termination of the service of the plaintiff was illegal. (b) In the case of Deokinandan Prasad v. State of Bihar (1971) ILLJ 557 SC the true effect of the decision in Jai Shanker's case was considered. A reference was also made to Rule 76 of the Bihar Service Code. In this context it was observed:

A contention has been taken by the petitioner that the order dated August 5, 1966 is an order removing him from service and it has been passed in violation of Article 311 of the Constitution, According to the respondents there is no violation of Article 311. On the other hand, there is an automatic termination of the petitioner's employment under Rule 76 of the Service Code. It may not be necessary to investigate this aspect further because on facts we have found that Rule 76 of the Service Code has no application. Even if it is a question of automatic termination of service for being continuously absent for over a period of five years, Article 311 applies to such cases as is laid down by this Court in (1966) IILLJ 140 SC . In that decision this Court had to consider Regulation No. 13 of the Jodhpur Service Regulations which is as follows:

An individual who absents himself without permission or who remains absent without permission for one month or longer after the end of his leave should be considered to have sacrificed his appointment and may only be reinstated with the sanction of the competent authority. It was contended on behalf of the State of Rajasthan that the above regulation operated automatically and there was no question of removal from service because the officer ceased to be in the service after the period mentioned in the regulation. This Court rejected the said contention and held that an

37

opportunity must be given to a person against whom such an order was proposed to be passed, no matter how the regulation described it. It was further held to give no opportunity is to go against Article 311 and this is what has happened here. Therein, the law was laid down in the following terms:

The consideration on these two cases makes it clear that in the circumstance as in the present case, treating the petitioner to have ceased to be in Government employ amounts to her removal, and further that the said removal without giving her an opportunity is to go against Article 311 of the Constitution. In the circumstances of the present case, violation of Article 311 of the Constitution is writ large. There can, therefore be no doubt that the order under Annexure 2 is illegal, and the petitioner cannot be deemed to have ceased to be in Government employ on the basis of the said order or on the basis of Rule 76 of the Service Code. The Respondent herein had filed four writ petitions. Some interim orders were also passed in his favour. He did not get the benefit of any of the said orders. In his fourth writ petition, the Executive Council was directed to consider his case. It did not do so for more than two years. Why despite the High Court's order, the Vice Chancellor failed to place the matter before the Executive Council is not disclosed. The resolution of the Executive Council dated 8/9th January, 2003 was also not final. The same was placed before the High Court by way of a supplementary counter-affidavit only on 23.3.2003 whereas the matter was heard much prior thereto and the judgment was reserved. Judgment was delivered on 25th March, 2003 which again go to show that an attempt had been made by the University to stall the proceedings before the High Court. Before us only the University has taken a stand that even the Executive Council had put its seal by way of approval of the order of the Vice Chancellor. As the initial order passed by the Vice Chancellor was wholly without jurisdiction, the same was a nullity and, thus, the purported approval thereof, by the Executive Council would not cure the defect. Even if we do not take into consideration the legality, reasonableness or otherwise of the resolution of the Executive Committee, it is clear that so far as the order

38

passed by the Vice Chancellor is concerned, he failed to consider the question as to whether the Applicant was otherwise entitled to leave. The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case.

(c) In K.I. Shephard and Ors. etc. etc. v. : Union of India and Ors. (1988)ILLJ162SC , this Court held:

...It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may not really yield any fruitful purpose. {See also Assam Sillimanite Ltd. v Union of India : [1990]1SCR983 and H.L. Trehan v. Union of India : AIR1989SC568 .] We have noticed hereinbefore that the nature of leave, inter alia, was compensatory one. Although it cannot be claimed as a matter of right but an employee who had worked during summer vacation would have a legitimate expectation that he can avail the same. He was also entitled to be granted detention leave, unless there exists a just reason to refuse the same. We have noticed hereinbefore that the Head of the Department granted the leave and made recommendation for grant of permission. The Vice Chancellor even did not consider the same. An order passed by a statutory authority, particularly when by reason whereof a citizen of India would be visited with civil or evil consequences must meet the test of reasonableness. Such a test of reasonableness vis-à-vis the principle of natural justice may now be considered in the light of the decisions of this Court.

(d) The question came up for consideration before a three-Judge Bench decision of this Court, in D.K. Yadav v. JMA Industries Ltd. (1993)IILLJ696SC , wherein emphasizing the requirements to comply with the principles of natural justice while terminating the services of the employees on the touchstone of Article 21 of the Constitution of India; it was held that not only the procedure prescribed for depriving a person of his livelihood must meet the challenge of Article14 but also the law which will liable to be decided on the anvil thereof.

39

Here again, this Court opined that Article 14 requires that the procedure adopted must be just, fair and reasonable. It was furthermore held: Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. This Court opined that right to life enshrined under Article 21 would include the right to livelihood and thus before any action putting an end to the tenure of an employee is taken, fair play requires that reasonable opportunity to put forth his case is given and domestic enquiry conducted complying with the principles of natural justice. (e) In Uptron India Ltd. v. : Shammi Bhan and Anr. [1998]1SCR719 , this Court was considering the validity of the provisions of the Standing Orders of the company containing a clause that services of the workmen would be liable for automatic termination. This Court opined that if prior to resorting thereto an opportunity of hearing is not granted, such a provision would be bad in law. (f) The said legal position was reiterated in Scooters India Ltd. v. M. Mohammad Yaqub and Anr. : (2001)ILLJ7SC , where again requirement to comply with the principles of natural justice was highlighted. The matter may, however, be different in a case where despite having been given an opportunity of hearing, explanation regarding his unauthorized absence is not forthcoming or despite giving him an opportunity to join his duty, he fails to do so, as was the case in Punjab & Sind Bank and Ors. v. Sakattar Singh (2001)ILLJ174SC (g) In Lakshmi Precision Screws Ltd. v. Ram Bhagat (2002)IIILLJ516SC , a Division Bench of this Court was considering Clause 9(f)(ii) of the Standing Orders which reads as under:

40

9.(f) Any workman who, * * * * *

(ii) absents himself for ten consecutive working days without leave shall be deemed to have left the firm's service without notice, thereby terminating his service. The workman therein offered an explanation and having regard thereto, the Labour Court came to the conclusion that the action of the management in terminating the services of the workman therein was not justified. When the matter reached this Court, it was opined: Let us, therefore, analyse as to whether this particular Standing Order in fact warrants a conclusion without anything further on record or to put it differently does it survive on its own and that being a part of the contract of employment ought to govern the situation as is covered in the contextual facts. Referring to the decisions noticed by us hereinbefore, it was held: It is thus in this context one ought to read the doctrine of natural justice being an inbuilt requirement on the Standing Orders. Significantly, the facts depict that the respondent workman remained absent from duty from 13.10.1990 and it is within a period of four days that a letter was sent to the workman informing him that since he was absenting himself from duty without authorized leave he was advised to report back within 48 hours and also to tender his explanation for his absence, otherwise his disinterestedness would thus be presumed. The well settled principle of law as regards necessity to comply with the principles of natural justice was again reiterated, stating: Arbitrariness is an antithesis to rule of law, equity, fair play and justice - contract of employment there may be but it cannot be devoid of the basic principles of the concept of justice. Justice-oriented approach as is the present trend in Indian jurisprudence shall have to read as an inbuilt requirement of the basic of concept of justice, to wit, the doctrine of natural justice, fairness, equality and rule of law.

(h) A provision relating to abandonment of service came up for consideration yet again in Viveka Nand

41

Sethi v. Chairman, J&K Bank Ltd. and Ors. (2005)IILLJ1034SC before a Division Bench of this Court. This Court opined that although in a case of that nature, principles of natural justice were required to be complied with, a full-fledged departmental enquiry may not be necessary, holding: A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice.

(i) Mr. Dwivedi placed strong reliance upon the decision of this Court in Aligarh Muslim University v. Mansoor Ali Khan AIR2000SC2783. In that case, interpretation of Rule 5(8)(ii) came up for consideration which is in the following term:

Rule: 5(8)(ii) - An officer or other employee who absents himself without leave or remains absent without leave after the expiry of the leave granted to him, shall, if he is permitted to rejoin duty, be entitled to no leave allowance or salary for the period of such absence and such period will be debited against his leave account as leave without pay unless his leave is extended by the authority empowered to grant the leave. Wilful absence from duty after the expiry of leave may be treated as misconduct for the purpose of Clause 12 of Chapter IV of the Executive Ordinances of AMU and para 10 of Chapter IX of Regulations of the Executive Council. It was held that a show cause notice and reply would be necessary. If no show cause notice had been given, this Court held that the principles of natural justice would be held to be complied with.

24. This Court, however, in the special facts and circumstances of this case and particularly in view of the fact that admittedly leave was initially granted for a period of two years and an application for extension thereof was made by the Respondent therein for a further period of three years which was acceded to only for one year, this Court opined that on the admitted facts, the absence of a notice to show cause would not make any difference as the employee admittedly continuing to live in Libya, the extension of leave sought for was bound to be refused.

42

25. The parties in this case proceeded on the basis that it was not a case of misconduct. The High Court, therefore, in our opinion, wrongly arrived at the conclusion that the Respondent was guilty of misconduct. In that view of the matter, it is also not necessary for us to advert to the question as to whether in the facts and circumstances of this case, the High Court could have directed modification in the quantum of punishment without arriving at a finding that the same was shockingly disproportionate to the gravity of the charges made against the Respondent herein. The fact situation obtaining in this case is entirely different. Not only the Respondent made all attempts to join his duties, but, the situation prevented him from doing so beyond his control. Furthermore, in this case, the Vice Chancellor had no jurisdiction at all. Even the notification dated 25.03.1998 had no application.”

35. Still in the case of State of U.P. and Ors. v. Saraya Industries

Ltd. 2006 (11) SCC 129, the Supreme Court stated that provision

for imposition of duty or evasion thereof must be provided in terms

of the law. By reason of an executive order, a presumption cannot

be raised, neither can penalty be levied. The matter would have

been different, if the same was provided for, as has been sought to

be done now, by way of terms and conditions of licence or in terms

of the rules. By reason of an executive instruction, the provisions

of the law cannot be effaced.

36. The purpose of issuing executive directions or circulars is

primarily to provide guidelines which then must be read together

for the purpose of ascertaining the intendment thereof. Thus,

executive orders and circulars have to be interpreted and

construed in the backdrop of these stated principles and they

cannot be intended to achieve an object which is contra or even

different than the statutory law.

43

37. Now, we revert back to consider the circular dated

15thJanuary, 2008. Admittedly, the project in question was not

listed in EIA notification of 1994 and is listed under EIA

notification of 2006. It would not require EC under the EIA

notification of 2006 if it was not shown in EIA notification of 1994

and NOC was issued on or before 14th September, 2006. Here, we

are concerned with environmental protection with reference to

Municipal Solid Waste (Management and Handling) Rules, 2000

(for short ‘MSW Rules). These rules elaborately dealt with the

collection and disposal of municipal solid waste. None of the terms

and conditions of these rules were complied with by Respondent

No.4 till expiry of the NOC period of five years in 2010. The NOC

referred to in clause (ii) relates to the NOC being issued under the

provisions of the Environment (Protection) Act, 1986 read with

MSW Rules of 2000. The NOC issued by Respondent No.3 does not

state as to under what provision of law or under what statute the

NOC was being issued. In any case, this was the NOC for the

purpose of establishment of MSWM plant, which itself was not set

up till the expiry of the NOC period in 2010. Thus, the NOC was

rendered ineffective and infructuous.

38. Furthermore, we must see the intent of the circular which

has been clearly conveyed in clause (iii) of the circular dated 15th

January, 2008, though in a different context. Under that clause,

obtaining of EC irrespective of NOC would be necessary if the

project has not commenced and it was listed under both the

notifications of 1994 and 2006, but what is important is that the

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NOC should not be extended without asking the project proponent

to seek prior EC under the notification. The purpose and intent of

the circular dated 15th January, 2008, thus cannot be construed to

provide an exemption to the statutory notification of 2006 but is to

provide solutions in some given situations while ensuring that EC

is taken. The exception is relatable to only those projects where the

project has been commenced. That is why, the project activity

must relate to operation of the plant rather than commencing of

ancillary works (such as construction of staff quarters). Now we

must also examine the stand taken by Respondent No.3 for all

these years. Though the circular had been issued in the year 2008,

still the Board was of the firm view that Respondent No.4 need to

obtain EC from SEIAA. Even as late as on 5th March, 2012, the

Board wrote to Respondent No.4 that NOC had already lapsed and

in view of the notification of 2006, there was a compulsion for

seeking environmental approval for solid waste management

project and specifically stated that no report had been submitted

and the authorisation requested was specifically declined. Even on

11th July, 2012, similar stand was taken and the Board called for

rapid environmental impact and general environmental assessment

report to consider the request. Thus, as late as the end of 2012,

the Board was not willing to grant any authorisation or permission

to Respondent No.4 for operating the MSWM project in question. It

is also evident at that stage that the project had not been

completed and even its construction was not complete. The stand

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taken by Respondent No.3, apparently was in consonance with

law.

39. For reasons best known to Respondent No.3, the situation

underwent a complete change and it took a somersault in its view.

What happened in December, 2012 was that, all of a sudden,

Respondents No.2 and 3 not only issued authorisation by

extending the NOC after it had already lapsed but even took the

view and accepted the recommendation of the SEAC and SEIAA

that Respondent No.4 was not required to take EC. It abruptly

issued the letter dated 19th December, 2012. There was nothing on

record before us as to what proceedings were taken by Respondent

No.3 to examine the technical aspects, environmental impact and

the various objections with regard to the site in question. The order

dated 19th December, 2012 was issued in the absence of any

proceedings or any proper application of mind. We must also

notice that Mr. J.S. Yadav, at the relevant time, was the Member

Secretary of Respondents No.3 as well as 2. We even called for

original files of Respondent No.3 and they also did not reflect any

better picture. Then, after the institution of the application, the

order dated 15th March, 2013 came to be issued. In the face of

above facts and the records and the law, we have no hesitation in

holding that Respondent No.4 was required to take EC from SEIAA,

being Category ‘B’ project before setting up and operating MSWM

plant. Respondent No.4 is not exempted from seeking that

clearance on the strength of circular dated 15th January, 2008.

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In order to have independent assessment of the project, it

would be desirable that the Member Secretary of Respondent 3

should not be the Member Secretary of the SEIAA.

(D) Public Health, Environment and Discussion in General

40. We have already held that the site selection was in violation of

the established and known procedure. It was not in accordance

with the relevant rules. In fact, the site selection appears to be an

arbitrary decision based on no analysis, not in accordance with the

MSW Rules, 2000 and does not even appear to be in public

interest. The argument advanced on behalf of Respondent No.4

was that the educational institutions like Invertis University and

other institutions had come up during the operation of the NOC

issued in favour of Respondent No.4 for establishment and

operation of the plant in question. Furthermore, some land area

belonging to the Corporation had been unauthorisedly occupied by

the University. These submissions do not impress us at all,

primarily for the reason that right from 2005 till 2010-11, no work

had been executed in relation to the plant in question. In the

meanwhile, after obtaining sanction from the requisite authorities,

the Invertis University and other buildings had come up. There had

been rapid increase in the population density of the surrounding

villages and there were admittedly water bodies around the site in

question. It was expected of Respondent No.3 to seriously ponder

over the project, do a technical analysis and examine the impact of

the plant in question on the environment. Without performing their

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basic duty in accordance with the rules, the site had been

approved, which approval we are unable to sustain.

41. The establishment and construction of the plant in question

appears to have been carried out in blatant violation of the orders

of the High Court and Respondent No.3. The High Court as well as

Respondent No.3 had categorically noticed that the NOC had

lapsed as on 2nd January, 2010 and the same was not renewed,

and therefore, no construction activity could be carried out. The

High Court, in its earlier orders had stated that even the trenching

ground from the site in question should be shifted to an

appropriate site. Therefore, the Tribunal cannot permit Respondent

No.4 to take advantage of its own wrong and claim equity on the

ground that it has spent some money in raising the plant in

question. The amount which was spent in 2006 and earlier on

construction of a drain had nothing to do with the MSWM project

in question. The activity on which money was spent is not related

to the MSWM project activity. In fact the tender itself was invited in

2008 and agreement with the executing agency was amended in

2011. For these reasons of serious consequences, we are of the

considered view that Respondents cannot be permitted to claim

benefit of their own wrong doings.

42. 12 members of the Executive Committee of the Municipal

Corporation, Bareilly, strongly opposed, in public interest relatable

to public health, the establishment of the MSWM plant in question

and insisted on shifting of its site. Even this serious opposition did

not bring any proper results and there was undue persistence

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upon carrying out the project at the site in question. There is a

complete lack of application of mind while dealing with the

application for issuance of authorisation as well as considering

Form I and the SEAC’s recommendations by Respondents No.2

and 3. Without regard to any proper reasoning and analysis, the

decision taken by Respondent No.3 for all these years, was

suddenly altered. This certainly contains an element of

arbitrariness as the relevant considerations were overlooked while

irrelevant matters were taken into consideration while taking a

final decision in this regard.

(E) Sustainable Development

43. In Susetha v. State of Tamil Nadu AIR 2006 SC 2893, the

Supreme Court observed that the doctrine of sustainable

development is not an empty slogan. It is required to be

implemented taking the pragmatic view and not on ipse dixit of the

Court. Following the same principle, it cannot more so applied on

an administrative authority or a Corporation vested with the

statutory obligation of providing environmental protection to the

residents under its jurisdiction. Sustainable development means

that the richness of the earth’s bio-diversity would be conserved for

future generations by greatly slowing or if possible halting

extinctions, habitat and ecosystem destruction, and also by not

risking significant alterations of the global environment that might

– by an increase in sea level or changing rainfall and vegetation

patterns or increasing ultraviolet radiation – alter the opportunities

available for future generations. Sustainable development has been

49

defined in many ways but the most frequently quoted definition is

from the Brundtland Report which states as follows:

“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:

The concept of needs, in particular the essential needs of the world’s poor, to which overriding priority should be given; and

The idea of limitations imposed by the state of technology and social organisation on the environment’s ability to meet present and future needs.”

44. The concept of sustainable development is rooted in this sort

of systems thinking. It helps us to understand ourselves and our

world. The problems we face are complex and serious – and we

can’t address them in the same way we created them.

45. While applying the concept of sustainable development, one

has to keep in mind the “principle of proportionality” based on the

concept of balance. It is an exercise in which courts or tribunals

have to balance the priorities of development on the one hand and

environmental protection on the other. So sustainable development

should also mean the type or extent of development that can take

place and which can be sustained by nature/ecology with or

without mitigation. In these matters, the required standard now is

that the risk of harm to the environment or to human health is to

be decided in public interest, according to a ‘reasonable person’s

test. (Refer Research Foundation for Science and Technology and

Natural Resource Policy v. Union of India (2007) 9 SCR 906;

Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664;

Chairman Barton: The Status of the Precautionary Principle in

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Australia (Vol.22) (1998) (Harv. Envtt. Law Review, p. 509 at p.549-

A) as in A.P. Pollution Control Board v. Prof. M.V. Nayuder (1999) 2

SCC 718; and M.C. Mehta v. Union of India, AIR 2004 SC 4016. At

this stage, we may usefully refer to a very recent judgment of the

Supreme Court in the case of G. Sundarrjan v. Union of India &

Ors. Civil Appeal No. 4440 of 2013 (Arising out of S.L.P. (C) No.

27335 of 2012), Civil Appeal No. 4441 of 2013 (Arising out of S.L.P.

(C) No. 27813 of 2012), Civil Appeal No. 4442 of 2013 (Arising out

of S.L.P. (C) No. 29121 of 2012) and Civil Appeal No. 4443 of 2003

(Arising out of S.L.P. (C) No. 32013 of 2012) decided on 6th May,

2013 The Court, while referring to the principles of balance inbuilt

in the concept of sustainable development, elaborated the

principles as follows:

“228. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of some should be bypassed for a larger interest or cause of the society. But, a pregnant one, the present case really does not fall within the four corners of that principle. It is not a case of the land oustees. It is not a case of "some inconvenience". It is not comparable to the loss caused to property. I have already emphasized upon the concept of living with the borrowed time of the future generation which essentially means not to ignore the inter-generational interests. Needless to emphasize, the dire need of the present society has to be treated with urgency, but, the said urgency

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cannot be conferred with absolute supremacy over life. Ouster from land or deprivation of some benefit of different nature relatively would come within the compartment of smaller public interest or certain inconveniences. But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is taken and there is constant vigil, life of "some" can be in danger. That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution.”

46. In view of the above stated principles, which have been

applied by the courts and tribunals consistently, let us examine

the present case. Even when the hearing of this case had started, it

was not certain whether the construction of the plant had been

completed and if it was operational or not. A few maps and

photographs have been placed before us to show that within a

short distance – even less than 500 metres – the Invertis

University, hostels of students and other buildings, besides

populated villages and water bodies are located, certainly, the

plant in question is not the state-of-the-art one. From the

photographs that have been placed on record, it is evident that a

major part of this plant is open air and the basin pits have also not

been prepared as per the Schedule to the MSW Rules. The

structure itself is not of the kind which is incapable of being

shifted to another place.

47. Moreover, It is bound to have hazardous effects on the health

of the residents of the University/villages, some of them being

adjacent to the site in question. The site in which the plant is

52

located, is bound to cause pollution of ground water, which is

relatively at a higher level, by leaches. This is inevitable especially

in the rainy season. The municipal solid waste, which has been

dumped in the open area at the site without any laying of

impermeable membrane lining. Therefore, the contaminated water

is bound to seep into the underground water and even affect the

adjoining water bodies apart from affecting irrigation water. Even

the dumping sites have not been prepared in accordance with the

rules. The foul smell arising from the dumping at the site is bound

to pollute the air quality of the area. This bad smell is bound to

affect the health of the residents in the vicinity of the site and

because of pollution; they would be exposed to diseases like

asthma, emphysema and even cancer. Thus, the adverse effects of

permitting the plant to carry on its activities at the site in question

are bound to cause irretrievable damage to public health and

environment. The authorities concerned were requested by

different organisations, including the Executive Committee

members of the Corporation, the residents of the villages,

representatives of the University, Air Force and even other

volunteers to shift the site. These protests had taken place even

when there was no construction existing at the site. For reasons

best known alone to the authorities, and in any case none are

reflected from the records before us, the site in question was

persisted with in a most unscientific and arbitrary manner. Thus

when we apply the principle of balance between the public health

and the development and functioning of this project, the answer

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necessarily has to tilt against the continuation of this plant at the

site in question.

48. The Corporation, being a public body, is bound by the

principles of public accountability and performance of public

duties in accordance with the law of the land. In our considered

opinion, the Nagar Nigam, Bareilly, Respondent No.4, has failed to

discharge its duties in accordance with the law. Environmental

impact, convenience of the residents and ecological impacts are the

relevant considerations and all such considerations, in the facts of

the case, were weighed against Respondent No.4. The larger public

interest must prevail over the narrow end of collection and

composting of municipal waste at the site in question.

Scientifically, it is not even a comprehensive plant which would

help in achieving the objective of collection and disposal of

municipal solid waste. Admittedly, neither the plant is site specific

nor does it have incinerators to ensure proper treatment and

volume reduction and disposal of the municipal waste. It only has

a system for bringing the municipal waste at the site for

segregation and dumping for composting. Thus, shifting of the

plant from the present site at this juncture even would, in no way,

tilt the balance against the concept of sustainable development as

interests of the citizens who have the Constitutional right to clean

environment must prevail over such arbitrary action of the

Corporation. Salus populi suprema lex. While applying the principle

of balance as a facet of sustainable development, with reference to

the facts of the present case, we have to keep in mind the

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precautionary principle as well. It is better to take precaution today

than to suffer the consequences tomorrow. It is the future of

thousands of students and residents of the villages which is at

stake. There is not even a plausible explanation, much less a

definite reason, for Respondent No.4 to show why they could not

shift the plant to one of the earmarked sites in the Bareilly Master

Plan-2021 keeping in view the MSW Rules, 2000. To us, the public

health and future of the coming generations certainly weighs

against permitting the MSWM plant to continue at the site in

question. We have also examined this case from the view point of

economic viability of shifting the unit. In light of the above stated

facts and having examined various technical aspects of this case,

we are of the considered view that the physical shifting of the plant

to another appropriate and approved site would not only be

technically, economically and environmentally viable but also in

the larger interest of all stakeholders including the Corporation

itself.

49. 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;

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(c) by a mandatory injunction, Respondent No.4 to remove all

the municipal waste dumped at the site within four weeks

from today;

(d) the MSWM 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 MSW 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.

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50. The application is accordingly allowed in the above terms. We,

however, leave the parties to bear their own costs.

Hon’ble Mr. Justice Swatanter Kumar (Chairperson)

Hon’ble Mr. U.D. Salvi (Judicial Member)

Hon’ble Dr. D.K. Agrawal (Expert Member)

Hon’ble Dr. G.K. Pandey

(Expert Member)

Hon’ble Dr. R.C.Trivedi

(Expert Member) New Delhi July 18, 2013