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2006 DIGILAW 3483 (MAD)

V. Suresh and Another v. Union of India and Others

2006-12-14

A.P.SHAH, K.CHANDRU

body2006
Judgment : K. CHANDRU, J. This writ petition is filed in public interest challenging the order of the second respondent made in G.O.(Ms.) No.67 Environment and Forests (EC.II) Department dated 17.5.2005 and to quash the same 2. Under the impugned order, the Government issued a notification under Rule 8(7) of the Hazardous Wastes (Management and Handling) Rules, 1989 notifying the site in plot Nos.124 to 150 and 1 to 32, measuring an extent of 26 Acres and 40 Acres respectively, located at the Export promotion industrial Park, SIPCOT Industrial Complex at Gummidipoodi, Thiruvallur District, as a site for setting up facility for treatment, storage and disposal (for short, TSDF) of hazardous wastes generated from industries located at Thiruvallur, Kancheepuram and Chennai and if necessary, from other Districts in Tamil Nadu By the said impugned order, the Sixth respondent, viz., Industrial Waste Management Association was granted permission to acquire the site for setting up the said facility. The petitioners in public interest have challenged the said order on various grounds. 3. Even before filing this writ petition, the second petitioner came before Court with a writ petition being W.P.No.9051 of 2005 with a prayer for direction to the respondents in that writ petition to hold a public hearing for proposing to locate a hazardous waste disposal site at Gummidipoondi. Since the public hearing was held on 18.3.2005, the said writ petition became infructuous. Thereafter, subsequent to the passing of the impugned order. the present writ petition has been filed. 4. When the matter came up for admission, this Court after notice to the respondents, passed an order on 24.1.2006 granting ad interim injunction restraining the respondents 6 to 8 from constructing the TSDF. Thereafter, as there were rival contentions, this Court, on 3.4.2006, directed the National Environmental Engineering Research Institute (for short, NEERI) to submit its response to certain issues listed by the Court to be answered by them. The said issues are reproduced below: “ A. Did the Maryland Environmental Services visit the site at Gummidipoondi and give a report (Refer to Section 6.4. of the PEA)e B. “Is the PEA dated January 2005 the same as the EIA contemplated by the EIA Notification (refer Clause 4 Schedule IV of the S.O.60 (E) dated 27.1.1994) and Rule 8 of the Hazardous Waste (Management and Handling) Rules, 1989. of the PEA)e B. “Is the PEA dated January 2005 the same as the EIA contemplated by the EIA Notification (refer Clause 4 Schedule IV of the S.O.60 (E) dated 27.1.1994) and Rule 8 of the Hazardous Waste (Management and Handling) Rules, 1989. C. “Is a PIA (Preliminary Impact Assessment) permissible after the amendment to the Hazardous Wastes Rules dated 20.5.2003. D. Was risk assessment done as per Section 1.3 of the EIA Manual published by the Ministry of Environmental and Forests, Union of India. E. Were all the required studies for Air Environment, Water Environment, Biological Environment, Land Environment, Social Economic and Health Environment done in compliance with Section 3 the Manual. F.. “Were all the requirement of site investigation Criteria at para 4.0 of the Central Pollution Control Board Criteria for Hazardous Waste Landfills complied with.” In response to the same, the NEERI also submitted its report. Thereafter, the matter was listed for final hearing. 5. We have heard Sriram Panchu, Learned Senior Counsel appearing for T.Mohan, learned Counsel for the petitioners, P.Wilson, learned Senior Central Government Standing Counsel, representing the first respondent Union of India, R.Viduthalai, learned Advocate General assisted by Raja Kalifulla, learned Government pleader, appearing on behalf of the respondents 2 and 4, R.Ramanlal, learned counsel appearing for the respondents 3 and 5 and G Masilamani learned Senior Counsel leading K.R.Hariharan, appearing for the respondents 6 to 8 and have perused the records. 6. Sriram Panchu learned Senior Counsel appearing for the petitioners submitted that only after the Environment Impact Assessment study (for short EIA), the State Government or any person authorised by them can identify the site as for waste disposal. After the post preliminary Impact Assessment Identification, a public hearing was held after due notice to the public. After all these exercises only, a full EIA can be conducted and a report should be submitted to the State Pollution Control Board. In the present case, all the conditions were violated and there were several statutory violations and he took us through the voluminous documents filed in support of his contentions. 7. However, R. Viduthalai, Learned Advocate General appearing for the State submitted that the apprehensions. In the present case, all the conditions were violated and there were several statutory violations and he took us through the voluminous documents filed in support of his contentions. 7. However, R. Viduthalai, Learned Advocate General appearing for the State submitted that the apprehensions. raised by the petitioner are without any basis and all the Rules were scrupulously followed and there was no violation of the Hazardous Waste (Management and Handling) Rules, 1989 as amended in 2000 and 2003 and EIA Notification as amended on 10.4.1997. 8. G. Masilamani, learned Senior Counsel appearing for K.R.Hariharan, representing the respondents 6 to 8 contended that though they have filed a detailed counter affidavit refuting the allegations made by the petitioners, he wanted to raise a preliminary objection with reference to the jurisdiction of this Court in entertaining a petition of this nature. The learned Senior Counsel referred to the decision of the Supreme Court reported in Research Foundation for Science Technology National Resource policy v. Union of India and another Research Foundation for Science Technology National Resource policy v. Union of India and another Research Foundation for Science Technology National Resource policy v. Union of India and another (2005) 10 SCC 510 wherein the Supreme Court gave certain direction to the state Government regarding dump sites and same is extracted below: “ (4) Dump Sites The toxic inventory with regard to Hazardous waste dump sites in different States should be prepared by SPCBs and after verification by CPCB, shall be filed in this Court within four months so that the orders can be passed on the same being treated as authenticated national inventory on hazardous waste dump Sites.” 9. The Supreme Court, after notice the constitution the Standing Committee on Hazardous wastes to advise the Ministry on issues pertaining to hazardous waste and other related areas by the Union of India also appointed a Monitoring Committee in paragraph 53, which reads as follows: “ 53. We constitute a Monitoring Committee comprising of the aforesaid members as also Dr.Claude Alvares, NGO and Dr.D.B. Boralkar. This Committee shall oversee that the directions of this Court are implemented timely. It would also oversee that the aspects to which the Ministry has agreed are implemented in letter and spirit and without any laxity or delay in the matter. We constitute a Monitoring Committee comprising of the aforesaid members as also Dr.Claude Alvares, NGO and Dr.D.B. Boralkar. This Committee shall oversee that the directions of this Court are implemented timely. It would also oversee that the aspects to which the Ministry has agreed are implemented in letter and spirit and without any laxity or delay in the matter. It would be open to the Monitoring Committee to Co-opt a representative of the State Government or State pollution Control Boards or any other person or authority as the committee may deem fit and proper. The Monitoring Committee shall file quarterly reports in this Court.” Both the Standing Committee and the Monitoring Committee are functioning. 10. The learned Senior Counsel appearing for the respondents 6 to 8 also referred to paragraph 422 of the counter affidavit dated 15.2.2006 filed by them, which reads as follows: “I respectfully submit that this respondent with the guidance of 3rd respondent has been following the guidelines issued by Hon‘ble Supreme Court and does not violate any guideline. To substantiate this respondent has established the Hazardous Waste Management facilities at Hyderabad and other places. submit that we have successfully implemented the norms and guidelines enunciated by the Hon‘ble Supreme Court and also as per the guidelines issued by the Supreme Court Monitoring Committee.” ( Emphasis added) Further, in paragraph 44, it is stated as follows: “I respectfully submit that it is reiterated that the State Industrial promotion Corporation of Tamilnadu industrial complex has been identified by the Government of Tamilnadu and the Tamilnadu pollution Control Board and the selection of the location for putting up treatment Storage and disposal facility as also concurred by the Supreme Court Monitoring Committee. I submit that this site was also inspected by NEERI and NGRI and the site was approved for effective utilization of the Hazardous Waste Management system which would be proved from the report submitted by the said authorities. This report is enclosed by the said authorities/. This report is enclosed in a booklet for your reference.” ( Emphasis added) 11. He also brought to the notice of this Court, the interim application taken out by the Director of Ministry of Environmental and Forests in his capacity as the Secretary of the Monitoring Committee before the Supreme Court in I.A. No.16 of 2004. This report is enclosed in a booklet for your reference.” ( Emphasis added) 11. He also brought to the notice of this Court, the interim application taken out by the Director of Ministry of Environmental and Forests in his capacity as the Secretary of the Monitoring Committee before the Supreme Court in I.A. No.16 of 2004. In that application, the Monitoring Committee constituted by the Supreme Courtvide its decision reported in (supra) made an averment in paragraph 13, which is extracted below: “It is respectfully submitted that the Monitoring Committee is making this request to this Honble Court as various high Court‘ interventions are coming in the way of implementation of the judgement of this Hon‘ble Court, most of which are to be implemented within a specified time frame listed in the order dated 14.10.2003 itself.” Further, the prayer in the said petition is also extracted below: “(1) pass a general or direction that no High Court/Court or authority will take cognizance or entertain any challenge connected with the implementation of the order dated 14.10.2003 passes by this Hon‘ble Court.” 12. Pursuant to this application, the Supreme Courtvide its order dated 09.5.2005 in I.A.No. 16 passed the following order: “Having heard learned counsel and perused the record, we direct that no Court or Authority shall take cognizance or entertain any challenge connected with implementation of the order passed by this Court on 14th October, 2003. I.A.Is disposed of.” 13. Therefore, the learned Senior Counsel submitted that the present case relates to a location of TSDF and challenges are made with reference to the alleged violation of Hazardous wastes (Management and Handing) Rules, 1989 and this Court, therefore, ought not to have entertained the writ petition especially when the Monitoring Committee has been monitoring the locations ofdumpyard. 14. To this submission, learned counsel for petitioners has no answer and it was unfortunate that orders were not brought to the notice of this Court and the writ petition was entertained inadvertently and certain interim orders were also passed. Even in the counter affidavit filed on behalf of the respondents 6 to 8, no such averment has been made against the prohibitory order issued by the Supreme Court. Learned Advocate General, who appeared for State as well the learned counsel appearing for the pollution Control Board also did not bring it to the notice of this Court. 15. Even in the counter affidavit filed on behalf of the respondents 6 to 8, no such averment has been made against the prohibitory order issued by the Supreme Court. Learned Advocate General, who appeared for State as well the learned counsel appearing for the pollution Control Board also did not bring it to the notice of this Court. 15. In the light of these facts and in obedience of the order passed by the Supreme Court, this Court is unable to entertain the writ petition filed by the petitioners questioning the impugned order. Therefore, the writ petition fails and the same shall stand vacated forthwith. The parties are allowed to bear their own costs. However, this will not prevent the petitioners from approaching the Supreme Court with the grievance which they have projected in this writ petition in the manner known to law.