21 March 2023 3:06 PM GMT
The Kerala High Court on Tuesday declared that it would be monitoring the implementation of the Solid Waste Management and Handling Rules, 2016 in the state. The court was hearing the suo motu proceedings initiated by it in the wake of the fire at the Brahmapuram Solid Waste Management Plant. The division bench of Justice S.V. Bhatti and Justice Basant Balaji ordered that the...
The Kerala High Court on Tuesday declared that it would be monitoring the implementation of the Solid Waste Management and Handling Rules, 2016 in the state. The court was hearing the suo motu proceedings initiated by it in the wake of the fire at the Brahmapuram Solid Waste Management Plant.
The division bench of Justice S.V. Bhatti and Justice Basant Balaji ordered that the first phase of the implementation of the Rules in the State shall consist of collection, segregation, handling and handing over solid waste generated as per the Rules.
The court directed the District Collectors to file the first action taken, and compliance report through the Additional Chief Secretary, Local Self Government Department, Sharadha Muraleedhar, by April 3. It clarified that the first phase would commence from today.
It said the second phase, which would commence on April 12, would involve court monitoring of the imposition of fines and penalties on the violators of the Rules by the District administration. The Court said that the same would be done subject to the remarks of the Additional Chief Secretary regarding the performance indicators by the stakeholders including Local Self Governments and/or their constituents.
As regards the third phase which involves the option for recovery of compensation under Section 30 of the Water Act or the 'polluter pays principle' from the Local Self Government and the Polluter or the individuals found responsible for implementing Rules 2016, as well as the initiation of prosecution against the erring Secretaries of Municipal Corporations/ Municipalities/ Gram Panchayats, the court said that no start or end dates had been specified for the implementation of the third phase since the court was confident that it would not be pushed to initiate prosecution.
"We are not interested in prosecution, unless we are compelled to direct that," it observed.
The court, however, added that in case of prosecution, it would consider requesting the Chief Justice to designate or notify one Magistrate Court in each district for prosecuting the offences committed under the Environment Law.
It earlier said that both the civil and criminal liability of the Public-Private Partnership facilities would be fastened on the Local Self Governments and its agents, which is the Operator, for violation of Environment Protection Act, Rules 2016 and Act 2005. It added that the Local Self Government and its Administrators/Officers would be made responsible for the obligations and consequences envisaged under Rules 2016.
The court also cautioned that the future Public-Private Partnership for managing municipal solid waste facilities shall be designed, and established only with the prior consultation and approval of the District Level Disaster Management Committee. It said that the same was because any failure or breakdown in that regard would result in some form of disaster.
Taking note of the faulty drafting of the contract for which the Corporation had earned the ire of the Court earlier, the Court specifically stated during the hearing today that if anyone sanctions unauthorized contracts, they would do so at their own risk. It cautioned the Secretary of the Cochin Municipal Corporation, Babu Abdul Khader, not to be a signatory to the same, and also not to sanction further amounts unless it had been brought to the attention of the Court.
Strategy For Implementing Solid Waste Management Rules 2016
The Court today called for the implementation of the Rules, 2016 in two categories - firstly, at the Bramhapuram site together with the Districts of Ernakulam and Thrissur as a single category, and secondly, in the remaining 12 districts of the State as another category, on noting the "lamentable" state of implementation of the Rules in the State.
Thus, in a bid to improve the situation in the State, the Court directed that the suo motu proceedings would concentrate upon the inspection of the Solid Waste Disposal facilities established and operated by all the local bodies in the State by the competent agencies/ departments under the Rules, including the District Level Disaster Management Committee, in order to assess facilities, and identify the deficiencies as well as recommend measures for modernization.
The court also clarified that the aim of the suo motu proceedings would be to ensure that the Management System at the facilities are entrusted to competent officials with adequate manpower. It emphasized that it would also direct its focus towards the necessity for revision of the existing protocol for waste management, including segregated collection and processing, as well as the layout of the processing yard, along with transportation and storage facilities.
The bench also said that it intends to call upon the local bodies to educate the civic population regarding proper waste management, including waste processing at its origin, and proper segregation of biodegradable, non-biodegradable waste, as well as hazardous wastes and e-wastes. In this light, the court observed that the local bodies could also seek the assistance of citizen groups, and residents’ associations. It added that the Rules would be implemented by imposing fines by the concerned local bodies.
Brahmapuram Fire - An Indicator Of Disasters Lurking In Kerala
Terming the Brahmapuram fire incident as an "indicator of disasters lurking in the State of Kerala", the court said the State machinery, the elected representatives of people in all democratic institutions, stakeholders, institutions and individuals are all under the legal and constitutional obligation under Article 51 A(g) to protect and improve the environment.
"The citizenry of the Country can demand and enforce an environment free from pollution if we discharge our fundamental duty under Article 51 A(g). Therefore, the ongoing monitoring of the implementation of Rules 2016 by this Court would include issuing directions under [Disaster Management] Act 2005 to the respondents and other instrumentalities, agencies, coming within the ambit of Act 2005," the court observed.
The court thus proceeded to direct the Local Self Governments, i.e., Corporations, Municipalities and Grama Panchayats, to work in consultation with and furtherance of the directives issued by the State and District level committees under Act 2005 for enforcement of Rules 2016.
Objectives Of Rules, 2016 Can Be Achieved By Assuming Individual Responsibility
The court traced the source of the issue to the individual level, and observed that the objectives of the Rules, 2016 could be achieved by each one of the stakeholders assuming individual responsibility for the waste generated through proper collection, handling, and handing over to the agencies the waste generated at source to the Local Self-Governments.
In this light, the court added that the larger objectives of the Rules could be accomplished by implementing Rule 22 of Rules 2016, by calling it the 'Citizen Charter'. The said provision pertains to creating public awareness through information, education and communication campaign and educating the waste generators not to litter, minimizing waste generation, reusing the waste, practicing waste segregation and composting, storage and handover of segregated waste, and so on.
Directions To Additional Chief Secretary
The court also urged the Additional Chief Secretary, Sharadha Muraleedhar to issue a slew of directions. It directed the Additional Chief Secretary and the District Collector to take recourse to the powers available to them under the Disaster Management Act 2005 for implementation of and enforcement of Rules 2016 by all the Local Self Governments.
It called upon the Additional Chief Secretary to:
1. Direct the District Collectors who are not parties to the writ petition to invoke the power under Act 2005 for implementation of Rules 2016;
2. Issue directives to Tourism Department, Tourism Development Corporation, tourist homes, Devaswom Boards under Section 5 read with Section 23 of the Environment Protection Act to comply with Rules 2016 and Plastic Waste Management Rules 2016 in all the Temples coming under their administration;
3. Direct the Local Self Governments to issue directions that the solid waste in any form by the establishments shall be prohibited by communicating individual orders to the medium-bulk generators, including the places of worship of all religions.
4. Communicate the Court's order to Nava Kerala Mission, Suchitwa Mission and Clean Kerala Company Limited with a request to disseminate duties, the objectives of Rules 2016 and functions committed by the State Government for performance through their efforts and participation. The Nava Kerala Mission, on its part, was directed to convey the same to elected Ward Corporators/ Councillors/ Members of Corporations/
The court also directed Muraleedhar to discharge the obligation cast by Rule 2 of Rules 2016 by issuing a notification on the applicability of the Rules to ecologically sensitive areas, tourist spots, pilgrim centres, and beaches in the State, and also to place before the Court an alternative viable proposal for solid waste management for all the Municipal Corporations on or before April 11, 2023.
In this vein, the court also directed the District Collector to place a brief report on the solid waste management facilities in their jurisdiction, their functional efficacy and their suitability for managing solid waste generated within their territorial jurisdiction by the next date of hearing.
Directions To Pollution Control Board
The court today also issued certain directions to the Pollution Control Board (PCB):
1. To issue orders to respective Regional Officers of the Board to tabulate the number of Municipal Corporations/ Municipalities/ Grama Panchayats within their territorial limits;
2. To issue orders to respective Regional Officers of the Board to serve notice on these Local Self Governments for collection of legal samples from the place of dumping, and in the neighbourhood and file status reports with soft copies of photos on the statutory compliance by these facilities and functional efficacy, deficiencies, and short, medium and long-term measures needed for complying with Rules 2016;
3. To collect legal samples in the presence of District Level Services and representatives, of water from the water drawing points of Periyar river, one analysed by the Board, and another handed over to District Collector for sending to laboratories for analysis and to file the reports in that regard by April 3, 2023.
Directions To Judiciary And Members Of Legal Fraternity
The Court made a clarion call towards the members of the legal fraternity to implement Rules 2016 and extend cooperation to the statutory authorities. It directed the Registrar General to circulate a soft copy of the Order to all the Judicial Officers with a directive to strictly comply with Rules 2016 at the respective stations.
The employees of the District Judiciary were directed to be intimated through the respective Judicial Officers to comply with the obligations of Rules 2016 both at the office and residence of the employees in order to "set an example that the Judiciary is at the forefront of doing clearly what lies in its hands".
Three Advocates of the Court - Adv. Vinu T.V., Adv. Vishnu S., and Adv. Pooja Menon were also appointed as Amicus Curiae to assist the Court in monitoring the issues identified in the Writ Petition from time to time.
The matter has been posted for further consideration on April 3, 2023.
Case Title: Suo Motu v. State of Kerala
Click Here To Read/Download The Order