CWP No. 8504 of 2003 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision: 17th March, 2009 (1) CWP No. 8504 of 2003 Sat Priya Mehamia Memorial Education Trust (Regd.) ..Petitioner versus State of Haryana and others ..Respondents Present : Mr. Puneet Bali, Advocate for the petitioner Mr. Randhir Singh, Addl. A.G. Haryana for respondent-State of Haryana Mr. Rajesh Lamba, Advocate for respondent No.3 Mr. Arun Walia, Advocate for respondent No.5 (2) CWP No. 21476 of 2008 Ashok Kumar and others ..Petitioner versus Union of India and others ..Respondents _____ CWP No. 8504 of 2003 [2] Present: Mr. Ashok Aggarwal, Sr. Advocate with Mr. Nilesh Bhardwaj, Advocate for the petitioners Mr. O.S.Batalvi, Advocate for respondent No.1 Mr. Randhir Singh, Addl. A.G. Haryana for respondent No.2 Mr. Rajesh Lamba, Advocate for respondent No.6 Mr. Arun Walia, Advocate for respondent No.7 CORAM: HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE HON'BLE MR. JUSTICE HEMANT GUPTA 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? ***** T.S.Thakur, C.J. Since common questions arise for consideration in these two writ petitions, the same were heard together and shall stand disposed off by this common order. Disposal of Municipal Solid Waste generated by cities big and small is a formidable challenge for the Municipal Authorities in this country. Growing awareness among the citizens and the importance of hygiene and preservation of environment raises the expectations of the people further and adds urgency to the need for remedial steps. The traditional mode of disposal of waste by land fill method is also slowly giving way to more sophisticated and scientific methods of disposal by use of advanced technology. The present writ petitions bring into focus CWP No. 8504 of 2003 [3] the problem arising from dumping of waste and the need for its disposal by the Municipal Council, Rohtak. The factual back drop in which the controversy arises may be briefly set out as under:- An area measuring 20 Bighas 19 Biswas was acquired on the Jind Rohtak Road as early as in the year 1975 for dumping of municipal waste from the municipal limits of Rohtak. The said site has ever since then been used as a dumping site of solid municipal waste. The site which was at the time of its acquisition outside the municipal limits of Rohtak was brought within the said limits in the year 1990. Nearly 20 years after the acquisition of the dumping site, the petitioner trust purchased a large area measuring 25 acres at a short distance away from the dumping site for construction of a school. The school came up in due course to which nearly 1000 students are said to have been admitted over the years. Since the dumping site is merely 200 meters away from the school, the petitioner trust has filed the present writ petition seeking a writ of prohibition restraining respondent No.3 Municipal Council, Rohtak from dumping the municipal solid waste at the said site. A mandamus directing the respondents to take immediate steps in the matter including steps by way of shifting the municipal solid waste to a far flung, remote and uninhabited place, has also been prayed for. In connected Writ Petition No. 21476 of 2008 filed in public interest, a similar prayer has been made by the petitioners. The common cause which the petitioners in both the petitions have made against dumping of municipal solid waste at the site mentioned above is that it is causing air pollution and is contrary to the Municipal Solid Wastes (Management and Handling) Rules, 2000 framed under the Environment CWP No. 8504 of 2003 [4] (Protection) Act, 1986. The petitioners therefore pray that the dumping site should be shifted and any development or improvement in the same by way of setting up of a Solid Waste Treatment Plant as the site in question forbidden. By an interim order dated 15.5.2008, a Division Bench of this Court directed the respondents to remove all the garbage lying near the school aforementioned or abutting the road or any residential house and to forebear from dumping any such garbage in future. Aggrieved by the said order, the Municipal Council, Rohtak filed Civil Appeal No. 7280 of 2008 by special leave of the Apex Court who set aside the said order and remitted the matter back to this Court for an expeditious disposal of the same as far as possible within six months from the date of the communication of the order. That is precisely how, the present writ petitions have come up and have been heard at considerable length by us. Appearing for the petitioners, Mr. Ashok Aggarwal, learned Senior Counsel and Mr. Puneet Bali, Advocate made several submissions in support of the petitions. It was firstly argued by them that no facility for disposal of municipal solid waste could be set up without the prior approval of the authorities in terms of Rule 6(2) of the Municipal Solid Wastes (Management & Handling) Rules, 2000. ( for short “ the Rules, 2000”). It was contended that although the disposal of the solid waste by landfill method was pre-existing as on the date of promulgation of the said Rules, the same did not permit making of any improvement in the method already in use by way of setting up of Solid Waste Treatment Plant. On behalf of the respondents, it was per contra argued that the CWP No. 8504 of 2003 [5] landfill method was one of the modes of disposal of solid waste and the said facility having been set up 25 years before the framing of the Rules could not be shut down just because some one had with his eyes open purchased land in the vicinity of the facility and was finding the same to be a source of nuisance to him or to his establishment. It was urged that para No.5 of Schedule III of the Rules, 2000, permitted improvement of an existing facility to bring the same in accord with the specifications given in the said Schedule. Setting up of a Solid Waste Treatment Plant at considerable expense of Rs. 19 Crores was nothing but an improvement of the existing facility which was clearly permissible and against which the petitioners could make no grievance. Rule 6 of the Municipal Solid Wastes (Management & Handling) Rules, 2000 fixes the responsibility of the Central and State Pollution Control Boards and the Committees to monitor compliance with the standards regarding ground water, ambient air etc. as specified in Schedules (II) (III) and (IV) of the said Rules. It also provides for making of applications by the Municipal Authorities or the operator of a facility for grant of authorisation for setting up waste processing and disposal facility including landfills,which applications have than to be examined after taking into consideration the views of other agencies like the State Urban Development Department, the Town and Council Planning Department, Air Port or Air Base Authority, or the Ground Water Board as the case may be. Rule 6 of the Municipal Solid Wastes (Management & Handling) Rules, 2000, may at this stage extracted:- “6. Responsibility of the Central Pollution Control Board and the State Board or the Committees CWP No. 8504 of 2003 [6] 1. The State Board or the Committee shall monitor the compliance of the standards regarding ground water, ambient air, leachate quality and the compost quality including incineration standards as specified under Schedules II, III and IV. 2. The State Board or the Committee, after the receipt of application from the municipal authority or the operator of a facility in Form I, for grant of authorization for setting up waste processing and disposal facility including landfills, shall examine the proposal taking into consideration the views of other agencies like the State Urban Development Department,the Town and Country Planning Department, Air Port or Air Base Authority, the Ground Water Board or any such other agency prior to issuing the authorization. 3. The State Board or the Committee shall issue the authorization in Form-III to the municipal authority or an operator of a facility within forty-five days stipulating compliance criteria and standards as specified in Schedules II, III and IV including such other conditions, as may be necessary. 4. The authorization shall be valid for a given period and after the validity is over, a fresh authorization shall be required. 5. The Central Pollution Control Board shall co-ordinate with the State Boards and the Committees with particular reference to implementation and review of standards and guidelines and compilation of monitoring data.” A plane reading of the above would show that the State Board or the Committee is required to examine the request for setting up of waste processing and disposal facility and to issue such authorisation in the prescribed form within the time specified stipulating compliance criteria CWP No. 8504 of 2003 [7] and standards as specified in Schedules II, III and IV. So also the Board has to take the views of the agencies mentioned in Sub Rule (2) of Rule 6 only if the application is filed before the Board seeking authorisation for setting up of “ Waste Processing and Disposal Facility or Landfills”. A careful reading of Rule 6 in our opinion leaves no manner of doubt that the need for filing an application arises only if the Municipal Authorities or the operator of the facility proposes to set up a Waste Processing and Disposal Facility not already in existence. The Rule does not go to the extent of making it obligatory for the Municipal Authorities to seek authorisation of the State Board or the Committee for continued use of the landfill for disposal of the municipal solid waste. This is evident from the specifications for landfill sites stipulated in Schedule-III to the Rules mentioned above which inter-alia deals with the approach to be adopted qua existing landfill sites. Para 5 of the said Schedule simply requires improvement of the existing landfill sites which continue to be used for more than five years. Para No.5 of Schedule III of the Municipal Solid Wastes (Management & Handling) Rules, 2000 reads as under:- “ The existing landfill sites which continue to be used for more than five years, shall be improved in accordance with the specifications given in this Schedule”. A conjoint reading of Rule 6 and para No.5 of Schedule III in our view leaves no manner of doubt that for continued use of landfill sites, it is unnecessary for the Municipal Authorities to apply to the Board or the Committee nor is it necessary for the Board or the Committee to take views of other authorities or agencies mentioned in Rule 6 (2) of Rules, 2000. The landfill sites existing as on the date of framing of the Rules CWP No. 8504 of 2003 [8] have only to be improved in accordance with the specifications given in the Schedules. There is consequently no prohibition for use of an existing landfill site by the Municipal Authorities. It was next argued by learned counsel for the petitioners that the obligation to improve the landfill site was not being discharged by the respondent authorities in as much as the landfill method was being adopted even for such kind of waste, the disposal whereof was not permitted by that method. Reliance in support of that submission was placed by learned counsel upon para 6 of Schedule II to the Rules, 2000, from a reading whereof, it appears that land filling has to be restricted to non-biodegradable, inert waste and other waste that are not suitable either for recycling or for biological processing. Para No.6 of Schedule II of the Rules, 2000 reads as under:- “Disposal of municipal solid wastes: Land filling shall be restricted to non-biodegradable, inert waste and other waste that are not suitable either for recycling or for biological processing. Land filling shall also be carried out for residues of waste processing facilities as well as pre- processing rejects from waste processing facilities. Land filling of mixed waste shall be avoided unless the same is found unsuitable for waste processing. Under unavoidable circumstances, or till installation of alternate facilities, land filling shall be done following proper norms. Landfill sites shall meet the specifications as given in Schedule III.” It is also contended that facilities like fencing, hedging and monitoring as required by para 11 of Schedule III, however, were not being provided nor were specifications for land filling being adhered to, which were according to learned counsel for the petitioners essential to CWP No. 8504 of 2003 [9] bring the existing land fill site in accord with the specifications for such sites stipulated in Schedule-III. There are two precise reasons which would suitably deal with and repel these contentions. Firstly, because the writ petitions do not lay any foundation for the argument sought to be advanced at the Bar regarding use of disputed landfill site for purposes other than those permissible under Schedule II of the Rules. Secondly because it is not the case of the petitioners that the respondents are not taking steps needed to bring the landfill site in tune with the requirements of Schedule III of the Rules mentioned above. At any rate, the question whether the Municipal Authority is complying with the standards regarding ground water, ambient air, leachate quality and the compost quality, as specified in Schedules II, III and IV, has to be monitored by the State Board or the Committee. Although, collection, storage, segregation, transportation, processing and disposal of municipal solid waste is the responsibility of the Municipal Authority, it is not the case of the petitioners that any failure on the part of the Municipal Authority to take steps for improvement of the existing land fill site to bring the same in conformity with the standards prescribed under Schedules II and III has been reported to the competent authority or that the competent authority has neglected to examine the said aspect and issue directions wherever necessary. That apart, the process of improvement of the existing landfill site is an ongoing process and would include not only providing the facilities and adhering to the standards stipulated for that purpose but also setting up of any mechanized system for disposal of the solid waste. This system once placed in position would also take care of the requirement of Para 6 of Schedule II in so far as the same identifies the waste that can be CWP No. 8504 of 2003 [10] land filled and others that cannot be disposed of by that method. The argument that the existing disposal facility ought to be shut down, is, therefore, unsupported by the plain language of the Rules and the provisions contained in the Schedules. The same, is, therefore, rejected. It was next argued by learned counsel appearing for the petitioners that the landfill site in question had been used for over 25 years and should, therefore, be closed. Reliance in support was placed on para 7 of the Schedule III which reads as under:- “ The landfill site shall be large enough to last for 20-25years.” There is in our opinion no merit in this contention also. Para 7 (supra) does not stipulate the life span for use of landfill site what para 7 stipulates is that landfill site has to be large enough to last for 20-25 years. The argument that even when there may be no mandatory life span, the Court ought to read the same into the scheme of the Rules, has not impressed us. So long as the statute does not provide for a life span for a landfill site, no such span can be stipulated by a process of judicial interpretation. That apart whether or not a site can be used any further, would depend upon the size of the site and the quantity of solid waste being dumped on the same and the methods for its eventual disposal whether by process of decomposition or otherwise. According to the respondents, the Solid Waste Treatment Plant being set up on the site in question will eventually use the solid waste after proper segregation to generate manure which would then be used by the farmers in their fields. What is important is that the waste if dumped at the site, would be converted into useful material for use by the farmers. If that is so, as it CWP No. 8504 of 2003 [11] appears to be, the site may never saturate for the purposes of dumping as the process of dumping so also the process of removal of the waste after conversion into manure would be a continuous cycle. It was then argued by learned counsel for the petitioners that an alternative site had been identified and acquired by the State at village Jalalpur which site was being used as dumping site for the entire city of Rohtak. It was contended that since the said alternative site is a large area, there was no need for the authorities to continue with the present dumping site or to set up any plant over the same. Reliance in support was placed by counsel for the petitioners on a communication dated 9.7.2008 whereby Haryana Urban Development Authority had requested the Municipal Authority to take over the possession of the said alternative site. On behalf of the respondents, it was per-contra argued that the site referred to by the petitioners as an alternative site, was actually meant for use by the HUDA, which was setting up a large residential colony from sectors No.1 to 36 in Rohtak and from which a very large quantity of solid waste was bound to be generated for management and for disposal. Our attention was in this regard drawn to the affidavit filed by Ms. Suprabha Dahiya, I.A.S. Administrator, Haryana Urban Development Authority, Rohtak. In para No.4 of the Civil Appeal preferred by Municipal Council, Rohtak referred to earlier, it has been specifically stated as under:- “That the Haryana Urban Development Authority is developing 16 new Sectors in Rohtak for its planned development. The Authority is developing residential sectors Numbers 1,2,3,4,5,6,14,18,21,21-A, 25,26,27,31,35,36. In order to treat solid waste and anticipating future necessity to CWP No. 8504 of 2003 [12] manage and control the pollution and to keep the atmosphere healthy an area of around 35 Acres of land in the aforesaid village was acquired for the public purpose by the State of Haryana and which now vests with HUDA, Rohtak.” It was argued that the communication relied upon by the petitioners offering possession of the site aforementioned was issued only because of the interim order issued by this Court on 15.05.2008 requiring the Municipal Authority to shift the garbage to some other location. Since, however, that direction had been set aside by the Supreme Court, there was no question of handing over the newly acquired area to the Municipal Authority nor was there any proposal for the municipality to develop any solid waste treatment plant at the said site which has to be used by the Haryana Urban Development Authority for the benefit of the residents of the sectors mentioned above. We see no reason to disbelieve that version. The letter relied upon by the petitioners was issued on account of the compulsion arising out of the interim order passed by this Court by which the Municipal Authority was directed to remove the solid waste dumped over the site at Jind Road and not to dump any further waste at the said site. That direction, however, did not find favour with the Hon'ble Supreme Court and was accordingly set aside. During the intervening period, the Municipal Authorities were offered the alternative site by Haryana Urban Development Authority to enable it to use the same for dumping of the garbage. It did not, however, mean that the Municipal Authorities had any plan for setting up of a Solid Waste Treatment Plant at the said site which is for the benefit of the residents of the new sectors of Haryana Urban Development Authority. It was lastly contended by learned counsel for the petitioners CWP No. 8504 of 2003 [13] that although in the draft master plan, the site in question was not shown as a disposal site, yet in the master plan the same has been shown as a site for dumping of solid waste. If that be so, we see no reason why the dumping should be treated as a non-conforming use by the municipality. The fact that the master plan also permits use of the site as dumping site and for disposal of solid waste clearly shows that there is no violation of the master plan. In the result, we see no reason to interfere. The present writ petitions accordingly fails and are hereby dismissed with costs assessed as Rs. 10000/- in each case. The costs shall be deposited in the Punjab & Haryana High Court Legal Services Committee. (T.S.THAKUR) CHIEF JUSTICE (HEMANT GUPTA) JUDGE 17th March ,2009 'ravinder'