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T.M. Umashankar & Others v/s Union of India & Others

    Writ Petition No. 51509 & 52176-52179 of 2016 (GM-POL-PIL)

    Decided On, 10 January 2019

    At, High Court of Karnataka

    By, THE HONOURABLE CHIEF JUSTICE MR. DINESH MAHESHWARI & THE HONOURABLE MR. JUSTICE ARAVIND KUMAR

    For the Petitioners: S.G. Prashanth Murthy, S. Sriranga, Advocates. For the Respondents: R1, Gururaj Yadravi, R2, D. Nagaraj, AGA, R3, D. Nagaraj, R4, H.L. Pradeep Kumar, Basavaraj V. Sabarad, R5, R. Subramanya, Advocates.



Judgment Text

(Prayer: These Writ Petitions are filed Under Articles 226 and 227 of the Constitution of India praying to declare that the establishment of TSDF of Respondent Nos. 5 and 6 consortium is illegal and etc.)

1. The petitioners, said to be the residents of Nelamangala Taluk, Bengaluru Rural District and holders of certain parcels of agricultural land, have preferred these writ petitions essentially seeking to question the Treatment, Storage and Disposal Facility (TSDF) established by the respondent Nos.5 and 6 on a contract awarded by the respondent Nos.2 and 4.

2. While raising several issues concerning the compliance of the Environment (Protection) Act, 1986, Hazardous and Other Waste (Management and Transboundary Movement) Rules, 2016 as also the other cognate Environment Protection Laws, the petitioners have prayed for the reliefs as under:

"a. D

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eclare that the establishment of TSDF of the 5th & 6th Respondent consortium is illegal; b. Direct the 1st to 4th Respondents to facilitate the closure of TSDF of the 5th & 6th Respondent consortium;

c. Declare that the 5th & 6th Respondent consortium has no right to continue operations without establishing the 3 funds namely - 'super fund', Residual Liability Fund and Environment Relief Fund;

d. Issue a writ of certiorari to quash the Government Order dated 04.09.2014 bearing No. FEE 277 ENV 2014 (Annexure-G) issued by Respondent No.2;

e. Direct an enquiry in respect of serious illegalities and violations by the 5th & 6th Respondent consortium and Government authorities in establishing and running of TSDF and incineration facility at Survey Nos. 7 to 9 and 75 to 85 of Premanahalli Thimmanayakana Halli villages, Nelamangala District, Bangalore South Taluk and take action against the erring individuals/entities;

f. Direct the 1st to 4th Respondents to initiate proceedings against the 5th & 6th Respondent consortium and its directors and officers incharge under the provisions of Environment(Protection) Act, 1986 and Hazardous and Other Waste (Management and Transboundary Movement) Rules, 2016;

g. Direct a proper Environmental Impact Assessment be carried out by a Committee to be formed by this Hon'ble Court to assess the impact of 5th & 6th Respondent consortium on Thippagondanahalli reservoir which provides drinking water to the Bangalore city and take all preventive or remedial measures to prevent all forms of contamination and pollution to water bodies.

h. Grant cost of proceedings.

i. Pass such other orders that this Hon'ble Court may deem fit in the facts and circumstances of this case."

3. These petitions were initially considered on 29.09.2016 when notices were ordered to be issued. Thereafter, on 13.12.2017, the following order came to be passed by the Court :

"Sri Ashok Haranahalli, learned Senior Counsel appearing for respondent No.5 submits that respondent No.5 will deposit Rs.3,20,00,000/- [Rupees Three Crores Twenty Lakhs only] with this Court within ten days from today. Accordingly, respondent No.5 is directed to deposit Rs.3,20,00,000/- [Rupees Three Crores Twenty Lakhs only] with this Court within ten days from today. List on 02.01.2018."

4. After several adjournments, when the matter was further considered on 28.11.2018, this Court queried on the compliance of the aforesaid order dated 13.12.2017 and after taking note of the submissions made on behalf of the parties, the following order was passed:

"On being queried in regard to the order aforesaid, it is pointed out that the said amount is lying in deposit in this Court. The said amount is essentially referable to 'Superfund' as provided in Clause 1.2.9 of the contract agreement, wherein the respondent Nos.5 and 6 are said to be the 'private operators' for Common Hazardous Waste Treatment, Storage and Disposal Facility.

The respondent -Karnataka Industrial Areas Development Board ('KIADB'), by its letter dated 18.05.2017 [Annexure-R1], had pointed out to the said respondent Nos.5 and 6 about the escrow account having been opened with the Corporation Bank, wherein the said respondents were supposed to deposit the amount relating to Superfund. The KIADB has indicated in the said letter, tentative amount for operation of the plant from 2008-09 to 2017-18 at Rs.866.00 lakhs.

Learned counsel appearing for the respondent Nos.5 and 6 though seeks to dispute the amount as stated in the said letter, but submits that the other part of the amount towards the said superfund would be calculated by the said respondents and he would be placing the calculation before the Court on the next date of hearing.

Several aspects relating to obtaining of environmental clearance by the respondent Nos.5 and 6 from the Central Pollution Control Board as also the State Pollution Control Board have come up for consideration.

Looking to the questions involved in the matter, it appears appropriate that these matters be listed at an early date.

However, the amount lying in deposit in this Court be transferred to the escrow account with the Corporation Bank as indicated in the letter dated 18.05.2017 by the KIADB and the same shall remain in such deposit until further orders in these matters.

List these matters for orders on 12.12.2018."

Further, on 12.12.2018, after taking note of the submissions made on behalf of the parties, the following order was passed:

"The office has reported compliance of the order dated 28.11.2018 in the manner that the referred sum of Rs.3,20,00,000/- (Rupees three crores twenty lakhs) has been transferred to the specified escrow Account.

Learned counsel for the respondent Nos.5 and 6 has submitted his statement of accounts relating to the 'Superfund' deposits to be made as per the Official Memorandum dated 16.04.2009. Learned counsel appearing for the respondent Nos.5 and 6 submits that, as per the calculations, the remaining amount to be paid by these respondents until the month of November, 2018 comes to Rs.11,61,011/- (Rupees eleven lakhs sixty one thousand eleven). These respondents may make such payment to the respondent- Karnataka Industrial Areas Development Board ('KIADB') within two days and the respondent- KIADB may accept such payment without prejudice and subject to all just exceptions. Learned counsel appearing for the Karnataka State Pollution Control Board submits that he shall be filing his response affidavit during the course of day.

List these matters on 10.01.2019, as prayed."

5. On the matter being taken up for further consideration today, learned counsel for the respondent No.4 -KIADB has filed a rejoinder affidavit, inter alia, disputing the correctness of calculation made by the respondent Nos.5 and 6 as regards the dues towards 'Superfund'.

6. Learned counsel for the respondent Nos.5 and 6 has, on the other hand, filed a memo pointing out that the said respondents have deposited an amount of Rs.11,61,011/- in the name of Super Fund Dobaspet, KIADB, in compliance with the order passed by this Court on 12.12.2018.

7. On the other hand, learned counsel for the respondent No.3 -Karnataka State Pollution Control Board (KSPCB) has pointed out that in relation to the same TSDF and on practically the same grounds, another petition has been filed before the National Green Tribunal, New Delhi (NGT) and the same is registered as Original Application No.117/2018. A copy of the order dated 13.03.2018 in the said Original Application by the NGT has also been placed on record, wherein notices were ordered to be issued to the respondents, who are the same parties as arrayed in these petitions. The issue raised in the said application is also substantially the same as raised in these petitions.

8. Learned counsel for the KSPCB has also referred to the decision of the Hon'ble Supreme Court in the case of Bhopal Gas Peedith Mahila Udyog Sangathan & Ors. vs. Union of India & Ors. : AIR 2012 SC 3081 to submit that this matter deserves to be transferred to the NGT.

9. Learned counsel for the petitioners as also learned counsel for the other respondents are also ad idem that on the subject-matter, these petitions deserve to be transferred to the NGT.

10. Taking note of the submissions so made and having regard to the subject-matter, it appears just and proper that these petitions be transferred to the NGT. Ordered accordingly.

11. The papers be transmitted to the National Green Tribunal, New Delhi, forthwith with due compliance of the rules.

12. In view of the above, these petitions as also the pending interlocutory application shall stand disposed of in this Court.

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