Supreme Court of India
Pune Municipal Corporation vs Sus Road Baner Vikas Manch on 12 September, 2024
Author: B.R. Gavai
Bench: Prashant Kumar Mishra, B.R. Gavai
2024 INSC 682 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 258-259 OF 2021
PUNE MUNICIPAL CORPORATION …APPELLANT(S)
VERSUS
SUS ROAD BANER VIKAS MANCH
AND OTHERS …RESPONDENT(S)
WITH
CIVIL APPEAL NOS. 265-266 OF 2021
JUDGMENT
B.R. GAVAI, J.
1. These Civil Appeals challenge the judgment and order
dated 27th October 2020 passed by the National Green
Tribunal, Principal Bench, New Delhi1 in Original
Application2 No. 210 of 20203 wherein the Tribunal disposed
of the OA preferred by the Sus Road Baner Vikas Manch,
Signature Not Verified
Digitally signed by
Narendra Prasad
Date: 2024.09.12
1
Hereinafter referred to as the ‘Tribunal’.
12:30:06 IST
Reason: 2
Hereinafter referred to as OA
3
Earlier OA No. 34 of 2019 (WZ). Initially the OA was preferred before the
Tribunal, Western Zone, and was subsequently transferred to the Principal
Bench, New Delhi.
1
Respondent No. 1 herein, by directing the Pune Municipal
Corporation4 to close the Garbage Processing Plant5 operated
by Noble Exchange Environment Solution Pune LLP6, at
Baner, Pune and to shift the same to an alternate location in
terms of the guidelines issued by the Central Pollution
Control Board7, within 4 months from the date of the order.
Having directed the closure of the GPP, the Tribunal further
granted liberty to the Maharashtra Pollution Control Board8
to recover environmental compensation on the basis of
‘polluter pays’ principle from the GPP for the entirety of the
period during which the environmental norms were violated
by the GPP. Seeking a review of the aforesaid order, the
respondent-Concessionaire, the operator of the
aforementioned GPP, filed a Review Application being No. 49
of 2020 which came to be dismissed by the Tribunal vide
order dated 22nd December 2020. The said order is also
under challenge in these present appeals.
2. We have two Civil Appeals before us. The first set of
Civil Appeals being CA Nos. 258-259 of 2021 have been filed
4
Hereinafter referred to as the ‘appellant-Corporation’.
5
Hereinafter referred to as the ‘GPP’.
6
Hereinafter referred to as the ‘respondent-Concessionaire’.
7
Hereinafter referred to as the “CPCB”.
8
Hereinafter referred to as the “MPCB”.
2
by the Pune Municipal Corporation. The second set of Civil
Appeals being CA Nos. 265-66 of 2021 have been filed by
Noble Exchange Environment Solution Pune LLP. For the
sake of clarity and to avoid confusion, the parties will be
referred to according to their positions in the first set of civil
appeals.
3. The facts which give rise to the present appeals are as
under:
3.1. Upon the municipal limits of the appellant-Corporation
being extended to include Baner Balewadi, a Development
Plan was drawn up in 2002 wherein land situated at Survey
No. 48/2/1 in Baner Balewadi, Pune was reserved for the
purpose of a GPP. In 2004, a public hearing was conducted
for the purpose of drawing up a new development plan,
subsequent to which, the Planning Committee of the
appellant-Corporation submitted its report on 30th December
2004 to the General Body of the appellant-Corporation
earmarking the aforesaid land for a GPP in the Draft
Development Plan of 2005. The said Plan was submitted to
the Government of Maharashtra on 29th November 2005
3
whereafter the Plan came to be sanctioned by the StateGovernment vide Notification dated 18th September, 2008.
3.2. In the interregnum, while the aforesaid Plan was
pending approval, in 2005, permission was sought for
constructing a residential building being Tarai Heights at a
site which was approximately 100 metres away from the
earmarked land in Survey No. 48/2/1 and subsequently, in
2008, permission was sought for constructing another
residential building being 52 Green Woods at a site which
was approximately 140 metres away from the aforesaid
earmarked land. In said fashion, over the years, permission
for construction of similar such residential projects were
sought in and around the earmarked portion of land. The
last such permission was sought in 2019 for the construction
of a residential building being Platinum 9.
3.3. Subsequent to the Development Plan of 2005 being
sanctioned, the appellant-Corporation and the respondent-
Concessionaire, Respondent No. 7 in the first appeal, entered
into a Concession Agreement on 30th March 2015 for setting
up an Organic Waste Processing Plant at the land situated at
Survey No. 48/2/1. The purpose of the Concession
4
Agreement was to set up an operational waste-processing
facility where pre-segregated, non-compacted organic waste
received from the appellant-Corporation would be crushed
into a slurry, after removing any non-biodegradable material,
and the said slurry would be transported to a facility in
Talegaon where raw biogas would be generated from the
slurry. The Concession Agreement was for a period of 30
years.
3.4. Subsequently, in compliance of the notification dated
14th August 2006, for the setting up of GPP, the respondent-
Concessionaire sought Environment Clearance from the
State Level Environment Impact Assessment Authority9 on
13th August 2015. Thereafter, pursuant to a public hearing
the SEIAA granted Environment Clearance to the
respondent-Concessionaire for establishment of Organic
Waste Management Plant on 1st February 2016. The
Environment Clearance accorded was to be valid for a period
of 7 years.
3.5. In the meanwhile, on 2nd December 2015, the MPCB,
Respondent No. 2 herein, granted authorization to the
9
Hereinafter referred to as ‘SEIAA’.
5
respondent-Concessionaire to set up and operate a solid
waste processing/disposal plant in accordance with the
Municipal Solid Waste (Management and Handling) Rules,
200010. The said authorization was valid till 31st December
2016.
3.6. The authorization granted by the MPCB was
subsequently renewed on two occasions. On 4th May 2017,
the MPCB further granted authorization to the appellant-
Corporation to set up and operate waste
processing/recycling/treatment/disposal facilities at various
sites, 48 in total, including at the concerned site i.e. Survey
No. 48/2/1, at Baner, Pune. The said authorization was to
be valid till 31st December 2021. The authorization was
renewed once again on 3rd August 2022 and the same is valid
up till 31st July 2027.
3.7. In 2019, Respondent No.1-Sus Road Baner Vikas
Manch, a registered Trust that had been established to
protect the interests of the citizens residing at the Sus Road
and Baner areas in Pune, preferred an OA being No. 34 of
2019 before the National Green Tribunal, Western Zone,
10
Hereinafter referred to as the ‘2000 Rules’.
6
seeking to restrain the respondent-Concessionaire from
operating the aforementioned GPP at Survey No. 48/2/1 at
Baner, Pune since the same had been established without
following the procedure prescribed by law.
3.8. Deeming it appropriate to verify the factual details set
out in the OA, the Tribunal vide its order dated 5th
September 2019 constituted an expert committee comprising
of the CPCB and the MPCB to inspect the GPP and the area
in question, and to submit a report within a month.
3.9. In compliance of the aforesaid order, the CPCB and the
MPCB conducted a joint inspection of the GPP and area in
question. Subsequently, a report was submitted before the
Tribunal wherein the joint inspection team had made several
observations about the operational capacity of the GPP, its
authorization status and certain procedural shortcomings.
3.10. Based on the Joint Inspection Report, the Tribunal
vide the first impugned order dated 27th October 2020 held
that the GPP was in violation of the right to clean
environment of the inhabitants and was against the statutory
norms. In that view of the matter, the Tribunal disposed of
the OA in the aforementioned terms. While directing a shut-
7
down of the plant, the Tribunal further directed that the site
in question might be used for the purpose of developing a
bio-diversity park, for which purpose the site had been
originally designated. The Tribunal further constituted a
Joint Committee comprising of the CPCB, the MPCB, District
Magistrate of Pune and the Municipal Corporation of Pune to
monitor the subsequent course of action in light of the
aforesaid decision.
3.11. Aggrieved thereby, the respondent-Concessionaire
filed a Review Application before the Tribunal being Review
Application No. 49 of 2020 which came to be dismissed vide
second impugned order dated 22nd December 2020.
3.12. Being aggrieved thereby, the present statutory
appeals have been filed under Section 22 of the National
Green Tribunal Act, 201011.
4. We have heard Shri A.N.S. Nadkarni, learned Senior
Counsel appearing on behalf of the appellant in CA Nos. 258-
259 of 2021, Shri K. Parameshwar, learned Senior Counsel
appearing on behalf of the appellant in CA Nos. 265-266 of
2021 and on behalf of respondent No.7 in CA Nos.258-259 of
11
Hereinafter referred to as the “NGT Act”.
8
2021, Shri Ninad Laud, learned counsel appearing on behalf
of respondent No.1 in both the matters and Shri Rahul
Kaushik, learned Senior Counsel appearing on behalf of
respondent No.2-MPCB in both the appeals.
5. Shri Nadkarni submitted that the Draft Development
Plan 2002 for Pune city was sanctioned on 18th September
2008. He submitted that this was done after inviting and
hearing objections under Section 28 of the Maharashtra
Regional and Town Planning Act, 196612. He submitted that,
at that stage, no objection was raised by anyone. He further
submitted that the advertisement inviting Expression of
Interest for setting up Waste Segregation and Processing Unit
was published on 4th March 2014. He submitted that the
Concession Agreement was entered into on 30th March 2015.
It is submitted that the Waste Segregation Unit is set up
within Pune city limits and the Processing Plant is situated at
Talegaon that is outside the city limits. It is further
submitted that the MPCB granted its authorization to set up
and operate on 2nd December 2015 and the Environmental
Clearance was also issued on 1st February 2016.
12
Hereinafter referred to as the “MRTP Act”.
9
6. Shri Nadkarni submitted that the respondent No. 1
herein despite having knowledge of the reservation in the
Development Plan, EC and grant of authorization for the
Waste Segregation and Processing Unit, filed an OA seeking
cancellation and revocation of EC only on 2nd March 2019. It
is therefore submitted that the OA was filed belatedly almost
after a period of three years from the date of grant of EC. It
is therefore submitted that the OA was filed much beyond
the period prescribed under Section 16 of the NGT Act. As
such, the OA ought to be dismissed on the ground of
limitation alone.
7. Shri Nadkarni further submitted that the learned
Tribunal had mixed up the facts. Whereas the GPP
reservation is in Plot No. 48/2/1 under the Development
Plan, the Bio-diversity Park is in Plot No. 49 which is an
adjoining plot. As such, the direction issued by the learned
Tribunal to use Plot No. 48/2/1 for Bio-diversity Park is
unsustainable.
8. Shri Nadkarni further submitted that the reservation for
the GPP in the Draft Development Plan is since 2002 which
was subsequently sanctioned in 2008. The residential
10
buildings had come up at a much later point in time. He
submitted that only one project was commenced on 27th
December 2005 whereas the second project was commenced
on 25th March 2008 and all other projects that is 17 in
number were commenced only from 2010 onwards that is
much after sanction of the Development Plan.
9. Shri Nadkarni further submitted that the
Environmental Clearance for the GPP was received on 1st
February 2016 and the Plant was set up and commenced in
the same year. He submitted that, at the relevant time, the
2000 Rules were in force. It is submitted that the Solid Waste
Management Rules, 201613 granted two years period for the
migration and upgrading of the existing Plant to the 2016
Rules and as such, the provisions pertaining to the waste
disposal came into force on 8th April 2018 i.e. after two years
from the date of notification of the 2016 Rules.
10. Shri Nadkarni further submitted that the provisions as
regards the buffer zones around waste processing and
disposal facility came into force in 2017 and as such, would
not apply to a plant which was conceived, set up and became
13
Hereinafter referred to as the “2016 Rules”.
11
functional in 2016. It is submitted that, even the 2016 Rules
envisage decentralization of the process i.e. segregation at
source. It is submitted that the present location of the GPP
conforms to the requirement of the 2016 Rules inasmuch as
only the waste generated from surrounding areas alone is
segregated and crushed at the Baner Plant.
11. Shri Nadkarni further submitted that in pursuance of
the observations made by this Court, the appellant-
Corporation took steps to look for an alternative site, but it
has not been possible to find out an alternative site on
account of variety of reasons.
12. Shri Nadkarni further submitted that the reasoning
given by the learned Tribunal that there was no consent of
MPCB for establishment of the GPP is also unsustainable. It
is submitted that, at the relevant time, the MPCB was not
issuing a separate “consent to establish” under the Water
Act, 1974 or the Air Act, 1981 but was issuing a composite
authorization to “set up and operate” across the State. It is
submitted that the circular issued by the MPCB dated 6 th
September 2021 would clarify this position. It is further
submitted that the said practice was followed throughout the
12
State. Shri Nadkarni relies on the proceedings of the Minutes
of the Consent Committee Meeting dated 9th November 2015.
13. Shri Nadkarni submitted that, since initially the
authorization granted by MPCB on 2nd December 2015 was
valid till 31st December 2016, the appellant-Corporation and
the respondent-Concessionaire applied for renewal and the
authorization, vide communication of the MPCB dated 4th
May 2017, was renewed for a period of five years i.e. till 31st
December 2021. It is submitted that, before the expiry of five
years period which was to expire on 31st December 2021, the
appellant-Corporation and the respondent-Concessionaire
again applied for renewal of the authorization to set up and
operate on 26th October 2021 and vide communication dated
3rd August 2022, the authorization to set up and operate was
renewed till 31st July 2027. Not only that, but on 1st
November 2022, consent to operate was also obtained as per
notification dated 6th September 2021. The consent to
operate has been further renewed till 30th September 2025.
14. Shri Nadkarni further submitted that the Joint
Inspection Committee appointed by the learned Tribunal
erroneously applied the 2016 Rules which did not apply to
13
the GPP which was conceived and became functional prior to
2016.
15. Insofar as the finding of the learned Tribunal regarding
buffer zone is concerned, Shri Nadkarni submitted that the
said buffer zone of 500 meters is to be maintained from land
fill sites and does not apply to Waste Segregation Plant. Shri
Nadkarni further submitted that the continuation of the
Project was in the larger public interest. It is submitted that
the GPP processes the organic waste generated in the
western part of the city i.e., Aundh, Baner, Kothrud,
Sinhagad road and Katraj. It is submitted that, prior to
commencement of the said Plant, the organic waste
generated in the western part of the city was taken all the
way to Hadapsar which is in the eastern part of the city. It is
submitted that this led to foul odour and nuisance to public.
It is therefore submitted that the impugned order of the
learned Tribunal rather than subserving in public interest,
would be detrimental to the public interest.
16. Shri Nadkarni submitted that, in any case, in order to
address the concern of the respondents, the appellant-
Corporation is in the process of installing portable
14
compactors with hook lifting mechanism to ensure that the
reject waste generated does not touch the ground. It is
submitted that the tenders for the same have already
awarded to one M/s Global Waste Management and the
installation of the machinery would be completed by
December 2024. He further submitted that the construction
of shed to cover the reject area would also be completed by
December 2024. Shri Nadkarni further submitted that the
appellant-Corporation would construct bitumen road to the
Waste Segregation Plant and concrete the Reject Area
immediately. This will in turn enhance the clean transfer of
waste and avoid accumulation of water around the Waste
Segregation Plant. He submitted that though the appellant-
Corporation desired to do it earlier, it could not be done since
the appellant-Corporation was facing objections from
protestors due to pendency of the present proceedings.
17. Shri Parameshwar, learned Senior Counsel appearing
on behalf of the respondent-Concessionaire also supported
the submissions made on behalf of the appellant-
Corporation. He submitted that the respondent-
Concessionaire specializes in processing food waste with
15
cutting edge anaerobic digestion technology – a process in
which microorganisms break down biodegradable waste to
produce biogas and organic manure. He submitted that,
when cleaned and purified to 96% purity, Bio CNG/CBG can
replace fossil fuels such as LPG, diesel, petrol, etc. It is
further submitted that the anaerobic digestion is an efficient
and controlled biological process that productively utilises
waste in an enclosed space, rather than dumping it in a
landfill, which causes environmental harm through leaching,
contamination of groundwater, risk of fires, etc. It is further
submitted that Indian food waste is unique in its
composition, with a high concentration of antibacterial
ingredients like turmeric and spices, and greases such as
ghee that cannot be broken down using conventional
enzymes and cultures. He submitted that the respondent-
Concessionaire, through years of research and experience,
has successfully developed enzymes, cultures, and processes
to biologically break down Indian food. It is submitted that
the Project commissioned by the respondent-Concessionaire,
as a matter of fact, is environment friendly inasmuch as it
16
converts the food waste into biogas which has also been used
to run public transport buses in Pune City.
18. Shri Parameshwar submitted that, in order to carry out
the conversion of food waste into biogas, the respondent-
Concessionaire has established two plants – one in Baner
and one in Talegaon. He submitted that the site at Baner is
a waste processing facility where pre-segregated, non-
compacted organic waste is received from the appellant-
Corporation. The waste is segregated again to remove any
non-biodegradable materials, and the residual organic waste
is crushed to make a slurry. The slurry produced is then
transported to a different site in Talegaon, which is about 34
kms away from Pune City, where raw biogas is generated
from the slurry.
19. Shri Parameshwar submitted that though the
reservation in the Draft Development Plan is of 2002 which
was sanctioned in 2008, no challenge has been made in the
OA challenging the reservation of this Plot as GPP. He
therefore joins Shri Nadkarni in submitting that the
impugned order passed by the learned Tribunal is not
sustainable in law.
17
20. Shri Ninad Laud, learned counsel appearing on behalf
of respondent No.1 in both the matters submitted that the
checklist prescribed by the MPCB in 2003 would also apply
to waste processing facility and the same is not restricted to
landfill sites. He submitted that, as per the said checklist, no
development zone of 500 meters is prescribed for Municipal
Solid Waste Processing Plants and Landfill sites. He further
submitted that a mere reservation in the municipal land will
not absolve the appellant-Corporation of the environmental
obligation. He submitted that the appellant-Corporation itself
has sanctioned the plans of the buildings where the residents
of respondent No.1 reside. Having sanctioned the Plans, the
appellant-Corporation cannot run away from its duty of
preventing pollution in the area on account of GPP.
21. Insofar as the contention that the MPCB was only
granting authorization and not consent, Shri Laud submitted
that merely because the MPCB was following a particular
practice, it cannot absolve the appellant-Corporation of
obtaining consent under the Water Act, 1974 or the Air Act,
1981 which are statutory requirements. Shri Laud submitted
that the 2003 checklist is traceable to 2000 Rules.
18
22. Shri Laud further submitted that, a perusal of the Joint
Inspection Committee Report itself would reveal that the
Joint Inspection officials felt prevalence of odour in and
around the plant premises. He further submitted that the
Joint Inspection Committee also found that the segregation
rejects has been transported in open truck without any
cover. He has submitted that the said Report also suggests
that such open carriage would cause nuisance during
transportation. He therefore submitted that it is clear that
the GPP was causing pollution in the area thereby making
the life of the residents of respondent No. 1 miserable. He
submitted that, not only that even the suggestions which are
given by the National Engineering and Environment Research
Institute14 have also not been implemented.
23. Shri Laud, in the alternative, submitted that, in the
event this Court is inclined to hold that the GPP is entitled to
continue its operations, the Court should issue stringent
directions so that the residents are not compelled to suffer
the pollution.
14
Hereinafter referred to as the “NEERI”.
19
24. Shri Kaushik, learned Senior Counsel appearing on
behalf of the MPCB also accepts the position that, at the
relevant time i.e. when the GPP commenced, the MPCB was
following the practice of only granting authorization and only
after its circular dated 6th September 2021, it has started
granting consent. He therefore submitted that accordingly,
the first consent was granted on 1st November 2022 and the
second consent has been granted on 16th March 2024.
25. We have heard the learned counsel for the parties and
also perused the materials placed on record.
26. A perusal of the proposed Land Use Map for village
Balewadi, Baner which was notified on 31st December 2002
would reveal that in the said Plan, Plot No. 48/2/1 has been
reserved for GPP. Plot Nos. 49/289/50 and 7 have been
shown in Green Belt. The Draft Development Plan was
published under Section 28(4) of the MRTP Act on 30th
November 2005. In the said Plan also, Plot No. 48/2/1 has
been shown as reserved for GPP. Plot Nos. 49/289/50 and 7
have been reserved for Bio-diversity Park (BDP). The
Government of Maharashtra vide notification dated 18th
September 2008 sanctioned the said Draft Development
20
Plan. It could thus clearly be seen that right from 2002, the
Plot in question has been reserved for GPP. As already
observed hereinabove, the first building was granted
commencement certificate on 27th December 2005 whereas
the second was granted commencement certificate on 25th
March 2008 and all other, that is 17 buildings, have been
granted commencement certificate only after 2008. It is thus
clear that the commencement certificate insofar as the first
building is concerned is also after the Draft Development
Plan was statutorily notified. The commencement certificates
insofar as all other buildings are also after the Draft
Development Plan was sanctioned by the State Government.
It is thus clear that the commencement certificates in respect
of all the buildings are after the date on which the Plot was
reserved for GPP.
27. The learned Tribunal while allowing OA of respondent
No.1 has also come to a conclusion that the GPP is also in
violation of Rule 20 of 2016 Rules. For considering the
correctness of the said finding of the learned Tribunal, we
will have to first consider as to which of the Rules are to be
applicable to the said GPP.
21
28. It is the contention of the appellant-Corporation that
the GPP would be covered by the 2000 Rules whereas it is
the contention of the respondent No. 1 that the same would
be covered by the 2016 Rules.
29. As per sub-rule (2) of Rule 1 of the 2016 Rules, the
Rules were to be given effect from the date of their
publication in the Official Gazette. The 2016 Rules were
notified on 8th April 2016. As per Entry No. 7 under Rule 22
of the 2016 Rules, the time frame for establishment of
necessary infrastructure for implementation of these Rules
was to be created by the local bodies and other concerned
authorities within a period of two years from the date of the
said Rules coming into force. It is further to be noted that the
application for authorization as per sub-rule (2) of Rule 4 of
the 2000 Rules was made by the appellant-Corporation on
10th August 2015 in Form-I and the authorization was
granted in Form-III of the 2000 Rules on 2nd December 2015.
The processing plant also became operational on 17th
December 2015. It is also to be noted that the SEIAA granted
Environment Clearance in respect of the Organic Waste
Management Plant at Talegaon, Dabhade after public hearing
22
on 1st February 2016. The GPP and the Organic Waste
Management Plant at Talegoan, Dabhade are part of the
same Concession Agreement which was entered into between
the appellant-Corporation and the respondent-
Concessionaire on 30th March 2015. It could thus clearly be
seen that the application for grant of authorization, grant of
authorization, grant of Environment Clearance by the SEIAA
and the commencement of the project was all prior to 8th
April 2016 i.e. the date on which the 2016 Rules came into
force.
30. It will also be relevant to refer to the Preamble of the
said 2016 Rules, which reads thus:
“Now, therefore, in exercise of the powers conferred
by sections 3, 6 and 25 of the Environment
(Protection) Act, 1986 (29 of 1986) and in
supersession of the Municipal Solid Waste
(Management and Handling) Rules, 2000, except as
respect things done or omitted to be done before
such supersession, the Central Government hereby
makes the following rules for management of Solid
Waste, namely:-”
31. It could thus clearly be seen that the Preamble itself
states that though the 2016 Rules are in supersession of the
2000 Rules, they will apply except as respect things done or
omitted to be done before such supersession.
23
32. It will be relevant to refer to the following observations
of this Court in the case of State of Punjab v. Harnek
Singh15, wherein this Court after considering the earlier
decisions has observed thus:
“16. The words “anything duly done or suffered
thereunder” used in clause (b) of Section 6 are often
used by the legislature in saving clause which is
intended to provide that unless a different intention
appears, the repeal of an Act would not affect
anything duly done or suffered thereunder. This
Court in Hasan Nurani Malak v. S.M. Ismail, Asstt.
Charity Commr., Nagpur [AIR 1967 SC 1742] has
held that the object of such a saving clause is to
save what has been previously done under the
statute repealed. The result of such a saving clause
is that the pre-existing law continues to govern the
things done before a particular date from which the
repeal of such a pre-existing law takes effect.
In Universal Imports Agency v. Chief Controller of
Imports and Exports [AIR 1961 SC 41 : (1961) 1 SCR
305] this Court while construing the words “things
done” held that a proper interpretation of the
expression “things done” was comprehensive
enough to take in not only the things done but also
the effect of the legal consequence flowing
therefrom.”
33. It can thus be seen that this Court has in unequivocal
terms held that the term “things done” was comprehensive
enough to take in not only the things done but also the effect
of the legal consequences flowing therefrom.
15
(2002) 3 SCC 481 : 2002 INSC 84
24
34. In the present case, as already discussed hereinabove,
the application for authorization, the grant of authorization,
the grant of Environment Clearance by the SEIAA and the
commencement of the GPP all have taken place prior to 8th
April 2016 i.e. the date on which the 2016 Rules came into
force. As such, we hold that the learned Tribunal has grossly
erred in observing that the GPP in question was covered by
the 2016 Rules.
35. The next finding of the learned Tribunal is with regard
to the consent under the Water Act or the Air Act. A perusal
of the Minutes of the 11th Consent Committee Meeting of
2015-16 held on 9th November 2015 would clearly reveal that
the MPCB was following the practice of granting
authorization under the 2000 Rules which covers all the
aspects of the consent. As such, MPCB did not find it
necessary to cover such processing plant for the consent
management.
36. It will be relevant to refer to the Circular issued by the
MPCB dated 6th September 2021, which reads thus:
“Board is receiving applications from solid waste
Management Facilities and ULBs for grant of
consent for installation and operation of the facility.
25
As there is no comprehensive categorization of all
Solid waste processing operations/activities in
modified CPCB categorization for Solid Waste
Management, Board is not granting the consent for
Solid Waste Management
Facility/operations/activities.
Presently, Board is granting authorization under
The Solid Waste Management rules, 2016, for
setting up and operation of solid waste management
facilities.
The Board in its 176th meeting held on 25/O2/2O2I
passed resolution on consent management for solid
waste processing plants / facilities and decided to
grant Consent to Establish/Operate for Solid Waste
Management facilities.
The Consent fees is charged as per Env. Dept. GoM
GR dated 25.8.2011 to individual/Integrated Solid
Waste Management facility depending upon type of
ULB. The term of consent for Red, Orange, and
Green category of Industry is one, two and three
years respectively”.
Local Bodies to pay the consent fees to the Board as
per the statement given below.
• Urban Local Bodies-
Sr. Urban Local Body Fees
No.
1. Municipal Corporation Rs.1,00,000/-
2. Municipal Council Class-A Rs.50,000/-
3. Municipal Council Class-B Rs.5,000/-
4. Municipal Council Class-C Rs.2,000/-
• Other than Local Body-
Individual Based on gross
26
Operator/Industry capital investment
installing MSW based as per prevailing
processing plant. rules for
industries.
• Delegation of powers to various authorities for
grant of consent will be as per “revised
delegation of powers for consent Management”
issued vide Office Order No. 12, Dated-
23/12/2O2O.
Therefore, all Ros and SROs are hereby directed to
communicate all local Bodies/Cantonment Boards
of Concern area of jurisdiction for submission of
application to obtain Consent to Establish/Operate
for setting up and operation of existing as well as
proposed solid waste management facilities.”
37. It could thus be seen that prior to 6th September 2021,
the MPCB was not granting Consent for Solid Waste
Management facility/operations/activities. The MPCB was
granting authorization for setting up and operation of solid
waste management facilities. Only in the meeting dated 25th
February 2021, a Resolution was passed on consent
management and it was decided to grant Consent to operate
for Solid Waste Management Facilities. Vide the said
communication, all ROs and SROs were directed to
communicate to all local Bodies/Cantonment Boards of
concerned areas for submission of applications to obtain
Consent to establish/operate for setting up and operation of
27
existing as well as proposed Solid Waste Management
Facilities.
38. Admittedly, after the said date i.e. 6th September 2021,
the Consent to Operate was granted by the MPCB on 1st
November 2022. The said Consent to Operate has been
further renewed till 30th September 2025 and authorization
to set up and operate has been granted till 31st July 2027. It
can thus clearly be seen that the MPCB started granting
Consent only after 6th September 2021 and prior to that, it
was only issuing a composite authorization. We find that the
learned Tribunal has failed to take this into consideration
and as such, the finding in that regard also deserves to be
set aside.
39. The next contention is that the Checklist issued by the
MPCB which was published in 2003 would also apply to the
GPP. The learned counsel for respondent No. 1 submitted
that the said Checklist specifically prescribes that no
development zone of 500 metres was required to be kept from
the boundary of the landfill site. Further relying on the
Checklist, the learned counsel submitted that the buffer zone
of 500 metres was required to be kept from the Solid Waste
28
Processing Plant as well. A perusal of the said Checklist
would reveal that the requirement of no-development zone or
a buffer zone is only with regards to landfill sites. It can
further be seen that the Schedules framed under Rules 6
(1)(3) and 7 (2) of the 2000 Rules prescribe separate
Schedules for landfill sites on one hand and Composting,
Treated Leachates and Incineration by waste processing or
disposal facilities on the other hand. From the said Schedule-
III which is applicable to landfill sites, it can be seen that
under clause 9, a buffer zone of no-development is required
to be maintained around the landfill site and the same shall
be incorporated in the Town Planning Department’s land use
plans. However, insofar as the Standards for Composting,
Treated Leachates and Incineration are concerned, the same
read as under:
“3. In order to prevent pollution problems from
compost plant and other processing facilities, the
following shall be complied with, namely :-
i. The incoming wastes at site shall be
maintained prior to further processing.
To the extent possible, the waste storage
area should be covered. If, such storage
is done in an open area, it shall be
provided with impermeable base with
facility for collection of leachate and
surface water run-off into lined drains29
leading to a leachate treatment and
disposal facility;
ii. Necessary precautions shall be taken
to minimise nuisance of odour, flies,
rodents, bird menace and fire hazard;
iii. In case of breakdown or maintenance
of plant, waste intake shall be stopped
and arrangements be worked out for
diversion of wastes to the landfill site;
iv. Pre-process and post-process rejects
shall be removed from the processing
facility on regular basis and shall not be
allowed to pile at the site. Recyclables
shall be routed through appropriate
vendors. The non-recyclables shall be
sent for well designed landfill site(s).
v. In case of compost plant, the windrow
area shall be provided with impermeable
base. Such a base shall be made of
concrete or compacted clay, 50 cm thick,
having permeability coefficient less than
10 –7 cm/sec. The base shall be provided
with 1 to 2 per cent slope and circled by
lined drains for collection of leachate or
surface run-off;
vi. Ambient air quality monitoring shall
be regularly carried out particularly for
checking odour nuisance at down-wind
direction on the boundary of processing
plant.”
40. We are therefore of the considered view that the
contention of the learned counsel for respondent No. 1 that
under the 2000 Rules, a buffer zone is required to be
30
maintained insofar as the GPP is concerned is without
substance.
41. We further find that the finding of the learned Tribunal
that initially the plot where GPP was constructed was
reserved for Bio-diversity Park is also erroneous and factually
incorrect. As discussed hereinabove, the plot in question has
been reserved for the GPP since inception and it is only the
adjoining plot which was reserved for the Bio-diversity Park.
42. We are therefore of the considered view that the learned
Tribunal has erred in allowing the OA of the respondent No.
1 and directing closure of the GPP. Apart from that, we find
that the closure of the GPP in question rather than
subserving the public interest, would be detrimental to
public interest. If the GPP in question is closed, the organic
waste generated in the western part of Pune city would be
required to be taken all the way throughout the city to
Hadapsar which is in the eastern part of the city. This will
undoubtedly lead to foul odour and nuisance to the public.
43. It will be relevant to refer to clauses (q) and (v) of Rule
15 of the 2016 Rules, which read thus:
31
“15. Duties and responsibilities of local authorities
and village Panchayats of census towns and urban
agglomerations.- The local authorities and
Panchayats shall,-
…………..
(q) transport segregated bio-degradable waste to the
processing facilities like compost plant, bio-
methanation plant or any such facility. Preference
shall be given for on site processing of such waste;
……………
(v) facilitate construction, operation and
maintenance of solid waste processing facilities and
associated infrastructure on their own or with
private sector participation or through any agency
for optimum utilization or various components of
solid waste adopting suitable technology including
the following technologies and adhering to the
guidelines issued by the Ministry of Urban
Development from time to time and standards
prescribed by the Central Pollution Control Board.
Preference shall be given to decentralized processing
to minimize transportation cost and environmental
impacts such as-
a) bio-methanation, microbial
composting, vermi-composting, anaerobic
digestion or any other appropriate
processing for bio-stabilisation of
biodegradable waste;
b) waste to energy processes including
refused derived fuel for combustible
fraction of waste or supply as feedstock to
solid waste based power plants or cement
kilns;”
44. It can thus be seen that the 2016 Rules also give
preference to the on-site processing of the waste. It also
emphasizes preference to be given to decentralized
32
processing to minimize transportation cost and
environmental impact. It has been submitted on behalf of
the appellant-Corporation that 48 such GPPs have been
commissioned throughout the city of Pune wherein the non-
compacted, organic waste is segregated to remove any non-
biodegradable materials and the residual organic waste is
crushed to make a slurry. The said slurry is then transported
to a site in Talegaon where raw biogas is generated from the
slurry. At the Talegaon plant, biogas is produced which is
used for providing fuel to the public transport buses. As
such, the entire Project is environmentally friendly.
45. The approach of respondent No. 1 appears to be that
such a Facility though could be established in the vicinity of
the other buildings, it should not be established in their
backyard. The Division Bench of the Bombay High Court in
the case of Bhavya Height Co-operative Housing Society
Ltd. v. Mumbai Metropolitan Region Development
Authority and Others16 had an occasion to consider a
similar situation, wherein the High Court observed thus:
“36. …….. To this affidavit there are sketch plans
annexed prepared by the Petitioner’s architects.
16
2019 SCC OnLine Bom 1075
33
These propose that the Monorail Station staircase
be shifted to a point to the south, directly in front of
Rehab Building No. 5. In other words, it would prima
facie seem that this is the classic NIMBY principle
— Not In My Back Yard. For what the Petitioner
seems to be suggesting is that it is perfectly all right
if the lives of the residents of the seven-storey slum
rehab building (all previously slum dwellers) are
endangered by the same staircase, but the
Petitioner’s members’ interest must remain
paramount. We cannot and do not countenance any
such submission.”
46. We agree with the said observations of the High Court.
47. We are therefore of the considered view that the
impugned judgment and order of the learned Tribunal
deserves to be quashed and set aside and the OA of the
respondent No. 1 is to be dismissed.
48. In the result, the appeals are allowed. The impugned
judgments and orders dated 27th October 2020 passed by the
learned Tribunal in OA No. 210 of 2020 and dated 22nd
December 2020 in Review Application being No. 49 of 2020
are quashed and set aside. OA No. 210 of 2020 filed by
respondent No. 1 is also dismissed.
49. However, before we part with the judgment, we find it
necessary to caution the appellant-Corporation as well as the
respondent-Concessionaire that they should take necessary
34
steps so that the residents residing in the nearby buildings
do not have to suffer on account of foul odour. The NEERI, in
its Report, had made the following recommendations:
“Recommendations:
Based on the observations and good engineering
practices, following suggestions are offered:
Plant A:
• The slurry making area needs proper cover in
the hopper area to reduce odour / foul smell,
• A suitable odour control system / misting
system (e.g carbon filters, etc) needs to be
installed immediately,
• Better material of construction and design
could be employed to avoid corrosion problems
and frequent shut downs,
• The space is too congested for capacity
enhancement. PMC may think of
additional/alternative space,
• The food bags need to be stored properly
before using them.
• Slurry sampling and analysis needs to be done
frequently to understand the decomposition of
food waste and control it to the level so that
maximum methane can be produced in the
Talegaon plant.
• The technology provider must also look into
reducing the transporting cost between slurry
making facility at Baner and Talegaon plant by
finding an optimum slurry density.”
50. We direct the appellant-Corporation and the
respondent-Concessionaire to ensure that all the aforesaid
35
suggestions made by NEERI should be strictly complied with.
We further direct the appellant-Corporation to install the
portable compactors with hook mechanisms so as to ensure
that the reject waste does not touch the ground by 31st
December 2024.
51. The appellant-Corporation is further directed to
construct bitumen road to the Waste Segregation Plant and
concrete the reject area which will enhance clean transfer of
waste and avoid accumulation of water around the Waste
Segregation Plant.
52. We further direct the appellant-Corporation as well as
the respondent-Concessionaire to construct a shed so as to
cover the reject area by 31st December 2024.
53. We further direct the appellant-
Corporation/respondent-Concessionaire to carry out
plantation with thick density so that there would be a green
cover on all the sides of the GPP.
54. A perusal of the sanctioned plan would reveal that, on
one side, there is a reservation for the Bio-diversity Park. As
such, the plantation would be required to be done to cover
the three sides.
36
55. Insofar as the Bio-diversity Park is concerned, we direct
the State Government to consider the possibility of growing
Miyawaki forests so as to provide green lungs to the nearby
areas.
56. We further direct the NEERI to conduct an
environmental audit of the GPP every six months and in
turn, the appellant-Corporation and the respondent-
Concessionaire are directed to ensure that the suggestions
made in the said audit are strictly complied with.
57. Pending application(s), if any, shall stand disposed of.
…………………………J.
(B.R. GAVAI)
……………………………………..J.
(PRASHANT KUMAR MISHRA)
…………………………J.
(K.V. VISWANATHAN)
NEW DELHI;
SEPTEMBER 12, 2024.
37