NGT levys compensation of Rs. 4,000 crores on Bihar Govt, amount to be operated by Bihar Chief Secretary only for waste management

The Original Application No. 606/2018 pertaining to the "Compliance of Municipal Solid Waste Management Rules, 2016 and Other Environmental Issues" was registered on August 20, 2018 in the Principal Bench of the National Green Tribunal (NGT).  NGT passed a 64 page long order on May 4, 2023. In respect of State of Bihar, it concluded that "We hope in the light of interaction with the Chief Secretary, the State of Bihar will take further measures in the matter by innovative  approach and stringent monitoring, ensuring that legacy waste to the  extent or more than 11.74 lakh MT as well as unprocessed urban waste of 4072 TPD and gap in liquid waste generation and treatment which is 2193 MLD are bridged at the earliest, shortening the proposed timelines, adopting alternative/interim measures to the extent and  wherever found viable. Restoration plans need to be executed at the earliest simultaneously in all districts/cities/ towns/ villages in a time bound manner without further delay with well laid monitoring mechanism at State and District level. District Magistrates must take ownership for monitoring of sewage and solid waste management and regularly providing report to Chief Secretary on monthly basis and overall compliance be ensured by Chief Secretary for which regular meetings be conducted."

It observed that "considering the statement about gap in sewage generation and treatment and also gap in solid waste management, we  levy compensation of Rs. 4,000/- crores on the State on polluter pays principle for its failure in scientifically managing the liquid and solid waste in violation of mandate of law, particularly judgments of the Hon’ble Supreme Court and this Tribunal. The amount may be kept in a ring-fenced account within two months to be operated as per directions of the Chief Secretary only for waste management (liquid and solid) in the State in the light of above observations. The amount be utilized for setting up solid waste processing facilities, remediation of legacy waste and setting up of STPs and FSSTPs so there remains no gap. Better alternatives to utilize the wet waste for composting at appropriate locations be explored. The scale of expenditure for STPs may be reviewed in the light of realistic expenses involved in decentralized/traditional systems or otherwise." NGT Bench comprising of Justice Adarsh Kumar Goel, Chairperson, NGT, Judicial Members Justices Sudhir Agarwal, and Arun Kumar Tyagi and Expert Members Dr. A. Senthil Vel, and Dr. Afroz Ahmad passed this order in the presence of officials from Bihar including Amir Subhani, Chief Secretary,  Arunish Chawla, Additional Chief Secretary, Urban Development & Housing Department and Dhramendra Singh,  Managing Director, Bihar Urban Infrastructure Development Corporation Limited.

NGT heard the matter in compliance with Supreme Court's order  dated September 2, 2014 in Writ Petition No. 888/1996. The Supreme Court observed “handling of solid municipal waste is a perennial challenge and would require constant efforts and monitoring with a view to making the municipal authorities concerned accountable, taking note of dereliction, if any, issuing suitable directions consistent with the said Rules and direction incidental to the purpose underlying the Rules such as upgradation of technology wherever possible. All these matters can, in our opinion, be best left to be handled by the National Green Tribunal established under the National Green Tribunal Act, 2010. The Tribunal, it is common ground, is not only equipped with the necessary expertise to examine and deal with the environment related issues but is also competent to issue in appropriate cases directions considered necessary for enforcing the statutory provisions.” The matter was monitored by the Court for about eighteen years wherein it passed order in 2000 and 2004 directing scientific disposal of waste by setting up of compost plants/processing plants, preventing water percolation through heaps of garbage, creating focused ‘solid waste management cells’ in all States and complying with the Municipal Solid Waste Management Rules. Even after 26 years of monitoring, 18 years by the Court and eight years by the NGT, "ground situation remains unsatisfactory".

NGT's directions are as under:
i. The Chief Secretary, Bihar may take further remedial measures to ensure compliance of SWM Rules considering the statutory timelines to be sacrosanct as already directed by this Tribunal vide judgment dated 22.12.201620 (para 10). Similarly, the timelines for ensuring setting up of necessary sewage
management systems have to be accepted as rigid timelines in view of judgment of the Hon’ble Supreme Court dated 22.02.201721 (para 6)
ii. Ring-fenced amount of Rs. 4,000/- crores for solid and sewage management be set apart within two months and such funds be kept as “non-lapsable”. (para 26 & 67)
iii. Legacy waste at 115 ULBs as well as at other ongoing sites be remediated without further delay and quantify remediated legacy waste indicating that no legacy waste is remaining and reported in the next compliance report. (Para 30)
iv. CPCB in consultation with some of the States PCBs and Municipal Corporations may work out environmentally safe methods/options for their use as directed in respect of State of UP (para 32).
v. Plastic waste and construction and demolition waste processing plants be set up ensuring that bio-medical, hazardous and Ewaste are not co-mingled and treated with solid waste (para 33).
vi. Immediate efforts be made for ensuring connectivity with existing STPs and proposed STPs (para 34).
vii. The issues relating to compliance of STPs with standards and utilization of treated sewage be monitored and looked into by centralised mechanism at State level. Instead of high costed STPs in small population towns/villages, oxidation ponds and other low cost options be preferred including modular STPs. Similarly, in-situ remediation projects be duly executed (para 47).
viii. Chief Secretary may immediately set up orientation programme on regular basis at appropriate institutional level to deal with environmental issues at district level. The execution plans should not be held up in repeated tendering systems. (para 55).

The next date of hearing is May 11, 2023.

Caste-based survey raises question of the right to privacy and legislative competence: Patna High Court

Responding to the unanimous resolution to carry out the caste-based survey by both the Houses of the Legislature of Bihar and its approval by the State Cabinet, a PIL was filed on April 5, 2023. It got registered on April 15, 2023. This PIL filed by Youth For Equality was converged with other PILs filed by Akhilesh Kumar, Ek Soch Ek Prayas, Reshma Prasad and Muskan Kumari. These cases were filed the backdrop of the decision of the State Government having decided to conduct a caste-based survey through the General Administration Department, expenditure of which was intended to be taken from the Bihar Contingency Fund, with a target to complete the exercise by February 2023 and a communication issued by the Principal Secretary to the District Officers, also indicates the subject to be of ‘Bihar Caste-based enumeration for determination of caste list for 2022.’ The proforma in which the survey is to be conducted enumerates seventeen heads or details to be collected; one of which is ‘caste’.

A Division Bench of Chief Justice K. Vinod Chandran,and Justice Madhuresh Prasad passed an interim order on May 4, 2023 saying, "we direct the State Government to immediately stop the caste-based survey and ensure that the data already collected are secured and not shared with anybody till final orders are passed in the writ petition." In the penultimate paragraph of the order, it says, "We also see from the notification issued that the Government intends to share data with the leaders of different parties of the State Assembly, the ruling party and opposition party which is also a matter of great concern. There definitely arises the larger question of right to privacy, which the Hon’ble Supreme Court has held to be a facet of right to life."

The order states that "Prima facie, we are of the opinion that the State has no power to carry out a caste-based survey, in the manner in which it is fashioned now, which would amount to a census, thus impinging upon the legislative power of the Union Parliament."

The order observes, "we find that the caste-based survey is a census in the garb of a survey; the power to carry out which is exclusively on the Union Parliament which has also enacted a Census Act, 1948. True, there is a compulsion by way of an obligation on the citizen under the Census Act and un-hindered entry conferred on the authorized officers; but also a protection from the records of census not being open to inspection nor admissible in evidence; under Section 15. Though it has been vehemently urged that both Houses of the State Legislature has sanctioned the survey, there is nothing placed on record regarding the deliberations made or the objects sought to be achieved by embarking upon such a massive exercise, that too for the collection of details which include the sensitive issue of caste. There are broad reasons stated in the counter affidavit, but nothing comes out from the notification, nor is any specific reasoning or object stated to have motivated the initiation of the exercise of a caste-based survey, which reasoning or motivation should also be relatable to a time, contemporaneous with the time of bringing out the notification. It is also submitted before us that 80% of the work is over and what remains is mere collation of the details collected and the further action based on such data collected and made available to the State."

In its May 4, 2023 order, the Court had posted the the writ petitions for hearing on July 3, 2023. On May 5, the Advocate General mentioned the matter before the Chief Justice and sought an early hearing. The current listing position shows that it is listed for orders before the Chief Justice on May 9, 2023.