PUBLIC INTEREST LITIGATION NO.63 OF 2019

5th December 2019

Petitioner Counsel: Ms. Gayatri Singh Ms. Kruti Venkatesh Zaman Ali Ms. Shivani Adani Ms. Shefali Alvares Mr. Zaman Ali Ms. Geeta Shastri
Respondent Counsel: Dr. Milind Sathe Mr. Saket Mone Mr. Subit Chakrabarti M/s. Vidhi Partners Ms. K.H. Mastakar Ms. Sharmila U. Deshmukh Ms. Jaya Bagwe Mr. Y.R. Mishra Mr. D.A. Dube Mr. A.Y. Sakhare Smt. Kiran Bhagalia
Act Name: Wildlife (Protection) Act, 1972 Solid Waste Management Rules, 2016

Cases Cited :
Paras 8, 10: T. N. Godavarman Thirumulpad Vs. Union of India.,

JUDGEMENT

R.I. Chagla, J.

1. Heard both sides. Considering that there are various arguable issues raised in the Public Interest Litigation ("PIL") concerning the validity of the 4th Environment Clearance ("4th EC"), we issue Rule. Hearing of the PIL is expedited.

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2. It would now be necessary to consider whether to vacate or continue the ad-interim order passed by this Court.

3. On 19th September, 2019, the following ad-interim order was passed:-
1. Issue notice to Respondents.
2. Counsel, as above, accept notice on behalf of Respondent No.1 and Respondent No.4. Humdast notice be served upon the other Respondents.
3. In view of the order dated 21st November, 2003 passed by the Supreme Court in SLP No.18717 of 2001 and the averments made in the Public Interest Petition, we stay the operation of the impugned Notification dated 29th October, 2018.
4. Humdast Notice is made returnable after six weeks.

4. Thereafter, the ad-interim order was continued by a further order dated 13th November, 2019 and in view of joint request made by the learned Counsel for the parties, the matter was stood over to 20th November, 2019.

5. By an order dated 20th November, 2019, the rejoinder Affidavit filed by the Petitioner was taken on record and the additional Affidavits in Reply filed by Respondent Nos.1 and 6 906-PIL-63-2019.DOC were also taken on record. The matter stood over to 22nd November, 2019. Thereafter, the matter was taken up on 27th November, 2019, when the parties were heard.

6. We do not consider it necessary for the Respondents to take out a separate application as there is on record an Affidavit in Reply filed by Shri Ashok S. Yamgar, Chief Engineer (SWM) in the employment of Respondent No.1 dated 6th November, 2019 and an Affidavit of Shri Shiju Antony Kallaraka, the Director of Respondent No.6 dated 6th November, 2019 seeking vacation of order dated 19th November, 2019.

7. Ms. Gayatri Singh, the learned Senior Advocate for the Petitioners has submitted that the 4th EC, which has been issued by the State Level Environment Impact Assessment Authority on 29th October, 2018 is contrary to CRZ Notification, 2011. She has referred to the CRZ Notification and in particular Clause 3 thereof, wherein the prohibited activities within CRZ are provided. This includes Clause 3 (v) i.e. the setting up and expansion of units or mechanism for disposal of wastes and effluents. There is an exception in Clause 3 (v) which is for facilities for treatment of wastes or effluents arising from hotels, beach resorts and human 906-PIL-63-2019.DOC settlements located in CRZ areas other than CRZ- I and disposal of treated wastes and effluents. She has further referred to Clause 8, which provides for norms for regulation of activities permissible under the Notification and in Clause V thereof, which provides for areas requiring special consideration. In this clause it is provided that the development activities in CRZ areas of Greater Mumbai, because of environmental issues, relating to degradation of mangroves, pollution of creeks and coastal waters, due to discharge of untreated effluents and disposal of solid waste shall be regulated. In (B) thereof, it is provided that solid waste disposal sites shall be identified outside the CRZ area and thereafter within two years the existing conventional solid waste sites shall be relocated outside the CRZ area. She has accordingly submitted that the 4th EC which had granted environmental clearance to the Respondent No.1 for scientific processing of Municipal Solid Waste (MSW) in 52.45 ha area, which is in CRZ 3 area other than the CRZ 1 at Kanjur MSW processing site in Mumbai is issued in violation of the said CRZ Notification. The facility to be set up for scientific processing of MSW in CRZ which is prohibited by the said CRZ Notification. This is particularly considering that the said Notification provides that MSW disposal sites shall be identified outside the CRZ area and thereafter within two years the existing 906-PIL-63-2019.DOC conventional solid waste sites shall be relocated outside the CRZ area.

8. She has also made submissions as to the 4th EC being contrary to the Solid Waste Management Rules, 2016 as well as contrary to the Wetland (Conservation and Management) Rules 2017 as well as contrary to the EIA Notification 2006. She has also submitted that the 4th EC is also contrary to the Wildlife (Protection) Act, 1972. She has referred to the Notification issued by the Revenue and Forest Department dated 10th May, 2018, which provides inter alia for certain areas i.e. 264.87 HA in the Kanjur to be declared as part of the "Thane Creek Flamingo Sanctuary". She has submitted that the facility viz. Bio Reactor Technology executed by Respondent No.6 as contractor for Respondent No.1 for treatment of MSW is in an Ecologically Sensitive Zone (ESZ) of the Thane Creek Flamingo Sanctuary. She has submitted that the said project for treatment of MSW would fall under category A as it is located within 5 km from Protected Areas notified under the Wildlife (Protection) Act, 1972 or in an Eco-Sensitive Area and permission of the National Board for Wildlife as well as permission of the MoEF should have been taken as provided in the Notification of MoEF and climate change 906-PIL-63-2019.DOC dated 15th August, 2015. It has been directed by the Supreme Court in T. N. Godavarman Thirumulpad V. Union of India that an area of 10 kms around 21 National Parks and Wildlife Sanctuaries be declared as Eco Sensitive Zone by the MoEF and that declaration be made by the MoEF at the earliest. The Thane Creek Flamingo Sanctuary was included at item No.11 of the list of 21 National Parks & Wildlife Sanctuaries. She has accordingly submitted that the ad-interim order granted by this Court on 19th September, 2019 which had stayed the operation of the impugned 4th EC / Notification dated 29th October, 2018 be continued.

9. Mr. Sakhare, the learned Senior Counsel appearing for Respondent No.1 has submitted that the 4th EC granted by the State Level Environmental Impact Assessment Authority dated 29th October, 2018 which is impugned in this Petition is legal and valid and has been acted upon by Respondent No.1 since December, 2018. He has submitted that the ad-interim order of stay of the impugned 4th EC had been passed nearly ten months after the 4th EC had been acted upon by the Respondent No.1 by utilizing the treatment plant erected at the Kanjur site (52.45 ha). He has submitted that this is the only authorized facility available 1 Writ Petition No.202 of 1995 dated 11th December, 2018.
906-PIL-63-2019.DOC to Respondent No.1 which has been executed by Respondent No.6 in conformity with the CRZ Notification. He has submitted that under Clause 3 (v) such facility is permissible and is an exception to the prohibited activities within CRZ areas. He has submitted that under this provision such facility can be set up for treatment of waste and effluents from hotels, beach resorts and human settlements located in CRZ areas other than CRZ- I and disposal of treated wastes and effluents. The Respondent No.1 has also complied with the requirement under the 4th EC to ensure that it will process waste generated from CRZ only. He has later produced letter dated 27th July, 2015 addressed by the Respondent No.1 requesting the Additional Chief Secretary, Environment Department, Government of Maharashtra for granting permission for disposal of MSW in 52.45 ha in CRZ - III at Kanjur Processing Site. It is mentioned therein that a large population of Mumbai is residing in CRZ - II areas of the city and several Metric Tonnes of MSW is generated from these areas everyday. This MSW can be effectively processed at Kanjur. The earlier EC granted by the State Environment Impact Assessment Authority had confined the processing of MSW to non-CRZ areas only and thus this EC was necessary. The letter dated 27th July, 2015 is taken on record and marked 'X' for identification.

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10. He has also made submissions to counter the contentions of on behalf of the Petitioners that the facility which has been set up in CRZ 3 area at Kanjur MSW processing site is situated within the proposed Eco-Sensitive Zone of the Thane Creek Flamingo Sanctuary. He has referred to a letter issued by the Additional Principal Chief Conservator of Forests (Mumbai Mangrove Cell) dated 23rd September, 2019 to the Municipal Commissioner of Respondent No.1. He has submitted that the area of Kanjur mentioned in the Notification dated 10th May, 2018 does not include the area on which the MSW Processing site of Respondent No.1 is situated. He has referred to the order of the Supreme Court in T. N. Godavarman Thirumulpad (Supra) to contend that although the Supreme Court had directed the area of 10 kms around these 21 National Parks and Wildlife Sanctuaries be declared as Eco Sensitive Zone by the MoEF, this had till date not been done. He has referred to the Affidavit in Reply of Respondent No.1 where it is stated that in accordance with the directions of the Supreme Court an I.A. has been filed by the Government of Maharashtra in the Supreme Court wherein it is prayed for a declaration of an area of 0.35 kms as proposed in the proposal submitted to the MoEF as Eco-Sensitive Zone in respect 906-PIL-63-2019.DOC of the Thane Creek Flamingo Sanctuary. This I.A. is pending before the Supreme Court for disposal.

11. He has submitted that the ad-interim order dated 19th September, 2019 had relied upon an order dated 21st November, 2003. He has submitted that order dated 21st November, 2003 is an order of the Supreme Court which had only directed the Government of Maharashtra to handover land to the Municipal Corporation of Greater Mumbai and on completion of all the formalities regarding transfer are over, the said land be used for dumping subject to strict observance of law relating to pollution. He has submitted that the reliance on the said order is misplaced in the ad-interim order dated 19th September, 2019. He has also submitted that as a result of the ad-interim stay granted by order dated 19th September, 2019, the Respondent No.1 is unable to operate MSW processing facility in the CRZ area. Therefore, there is a reduction in MSW processing of about 1000 Tonnes Per Day ("TBD"). Further the Mulund Dumping Ground is already closed and extension granted for Deonar Dumping Ground in PIL No.217 of 2009 is till 31st December, 2019 only. Considering these facts it will be difficult for Respondent No.1 to collect and process the MSW generated in city of Mumbai after 31st December, 2019.
906-PIL-63-2019.DOC Hence, the Kanjur Site will be the only site available to receive MSW. He has accordingly submitted that the said order dated 19th September, 2019 be vacated.

12. Mr. Milind Sathe, the learned Senior Advocate for the Respondent No.6 supported the submissions made on behalf of Respondent No.1 and has submitted that the CRZ Notification in fact expressly permits such facility to be set up / executed by in the CRZ - III area. He has submitted that the MSW facility does not fall within the area declared as Thane Creek Flamingo Sanctuary under Notification dated 10th May, 2018. In any event, the MSW project would be otherwise permissible even if the site was to be affected by the Eco-Sensitive Zone, when notified. Accordingly, the learned Senior Counsel for Respondent No.6 has submitted that the said order dated 19th September, 2019 which was passed in the absence of Respondent No.6 and which stayed operation of the impugned 4th EC Notification dated 29th October, 2018, be vacated.

13. Having considered the submissions on vacation of the order dated 19th September, 2019, we see no justification for the ad- interim stay of the impugned Notification dated 29th October, 2018 906-PIL-63-2019.DOC being granted and / or continued. With respect, the Division Bench which passed the ad-interim order dated 19th September, 2019 did not have the benefit of the Affidavits and the arguments to the contrary of the contesting Respondents which were thereafter filed and made by Respondent No.1 as well as by Respondent No.6. It is clear from these Affidavits that the MSW facility which had been set up and for which the 4th EC had been granted by State Level Environment Impact Assessment Authority was acted upon and that this was shortly after the permission had been granted. Infact, what is been stated in the Affidavit in Reply by Respondent No.1 in Paragraphs 27 and 28 is material and reproduced as under:-
27. With reference to para 16 of the petition, I say that Kanjur MSW processing facility is the scientific MSW processing facility available for scientific disposal of MSW generated in Mumbai. I say this Hon'ble High Court granted stay vide order dtd. 19.09.2019 on the operation of E.C. dtd. 29.10.2018, as a result of which MCGM is unable to operate the MSW processing facility in CRZ area. Therefore, there is reduction in MSW processing for about 1000 TPD. Further, Mulund Dumping Ground is already closed and extension granted for Deonar Dumping Ground in PIL 217 of 2009 is till 31 st December 2019 only.
28. The average total MSW collected and transported to Kanjur & Deonar site is approx. 6733 TPD. Out of this approx. 5000 to 5500 TPD is scientifically treated at Kanjur. I say that as per the order dated 19th September, 906-PIL-63-2019.DOC 2019 of this Hon'ble Court, the respondent MCGM has been forced to divert about 1000 TPD MSW from Kanjur (as per EC dated 29.10.2018 to process MSW in CRZ area) to Deonar dumping ground which was otherwise scientifically treated at Kanjur. I further say that as per order dated 09.04.2019 passed in PIL 217 of 2009 & other connected matters in the Hon'ble Bombay High Court, the extension for receiving MSW at Deonar dumping ground is only up to 31.12 2019. Considering above facts, it will be very difficult for MCGM to collect and process entire solid waste generated in city of Mumbai after 31.12.2019 at Kanjur site will be the only site available to receive MSW. If the capacity of the Kanjur site is reduced then this will have the adverse effect on the entire MSW disposal scenario of Mumbai and in turn will cause serious health hazards for the citizens living in Mumbai.

14. Considering what has been stated above by Respondent No.1, it would be imperative not to continue the stay of the 4th EC. The Mulund Dumping Ground has already been closed and extension granted for Deonar Dumping Ground in PIL No.217 of 2009 is only till 31st December, 2019. There is a reduction in MSW processing for about 1000 TBD. Further, the Respondent No.1 is compelled to divert about 1000 TBD MSW from Kanjur to Deonar Dumping ground which was otherwise scientifically treated at Kanjur. Thus any reduction in the capacity of the Kanjur site would have an adverse effect on the entire MSW disposal scenario of Mumbai and in turn will cause serious health hazards for the citizens living in Mumbai. The overriding public interest and concerns of public health and safety demand that this huge waste 906-PIL-63-2019.DOC and garbage generated in Mumbai city and suburbs is collected and treated daily. Any obstacle or hurdle in treatment of the same at a plant or facility specifically set up for the same would be hazardous. In fact, untreated waste and garbage is detrimental to public health.

15. Prima facie we do not find any patent or manifest arbitrariness in the issuance of the 4th EC. We also prima facie find that the MSW facility is not in violation of the CRZ Notification. The Notification expressly permits under Clause 3 (v) such facility being set up in the CRZ - III area for treatment of waste and effluents arising from hotels, beach resorts and human settlements located in the CRZ areas other than CRZ - I and disposal of treated wastes and effluents. This is an exception to the prohibited activities within CRZ. Since such facility is permissible, there are norms provided for regulation of such activities in the CRZ Notification. Thus, on all three counts, namely, strong prima facie, balance of convenience and irreparable harm, loss and injury, the ex-parte ad-interim order cannot be continued.

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16. Further, considering that this facility is in operation since December, 2018 i.e. shortly after the 4th EC on 29th October, 2018, an ad-interim stay of the 4th EC being continued is not justified. It would be in larger public interest that such MSW facility is operated to treat the MSW. We are not going into the other contentions raised by the Petitioners. We make it clear the vacation of the ad-interim stay granted by this Court on 19th September, 2019 is without prejudice to all contentions raised by the Petitioners as well as by the Respondents which are expressly kept open. Accordingly, the ad-interim order is vacated.