GREATER HYDERABAD MUNICIPAL EMPLOYEES UNION Vs. GOVT. OF A.P. MUNICIPAL ADMINISTRATION & URBAN DEVELOPMENT

JUDGEMENT

(1.) The Greater Hyderabad Municipal Employees" Union, represented by its President C.Satish Kumar filed the present Writ Petition challenging the agreement dated 21.02.2009 entered into by the second respondent with the third respondent for the purpose of developing integrated MSW management syManagement and Handling) Rules, 2000 (for short, hereinafter referred to as "MSW Rules, 2000"), in the matter of disposal of Municipal Solid Wastes (MSW), this Writ Petition is filed. THE city of Hyderabad has an area of 638 square kilometers and its population as in the year 2009 was 77.92 lakhs. By virtue of merger of the outskirt municipalities in the year 2007, GHMC came into existence, which is divided into five zones. It is estimated during the year 2009 that solid waste generated in the city is around 4350 metric tones per day. GHMC arranged 3259 dumper bins. THE waste is collected from the dumper bins and open points and transported through dumper placers, tippers and tractors to the transfer station. THE contents of these smaller vehicles are transferred directly into bigger long haul tipper vehicles through a specially designed hopper. THEse big tipper trucks take the waste to the final disposal site. At present, there are three transfer stations in operation i.e. Lower Tankbund, Yousufguda and Imliban. THE disposal sites are situated at Jawahar Nagar, Fatullaguda, Shamshiguda, BHEL, Auto Nagar and Gandamguda. THEre is an existing and a proposed waste processing facility in GHMC area and both the facilities are based on the concept of conversion of waste to RDF and generating power from it. THE second respondent has agreements with M/s. Selco International Limited and M/s. RDF Power Projects Limited whereunder the said companies would be supplied with the solid waste for the purpose of generating power from the processing of the waste, and the said companies pay Rs.10/- per metric ton to the second respondent and under the above mentioned agreements, the companies are supplied with 700 TPD each of MSW. From the provisions of Chapter XIV of the GHMC Act, 1955, it is clear that it is for the second respondent to do all the things provided therein and to discharge all the obligations imposed thereunder. THEre is no provision for handing over all the functions relating to scavenging and cleaning of the corporation area and the functions like collection of the solid waste from the primary sources, installation of the receptacles, transportation of the solid waste, disposal of the same to a third party. THE Government of India framed the Municipal Solid Wastes (Management and Handling) Rules, 2000 (for short, hereinafter referred to as "MSW Rules, 2000") in exercise of powers under Sections 3, 6 and 25 of the Environment (Protection) Act, 1986. THE Rules make it clear that it is the responsibility of the municipality to arrange for the collection of the solid waste, its storage and transportation. It is only for the purpose of disposal of the solid waste that the municipality can involve a private person that too on certain conditions pertaining to the supply of solid waste. THEse rules do not empower the corporation to totally handover all the functions relating to collection of the solid waste from the primary sources, storage, transportation and final disposal to a private party in toto. THE first respondent issued G.O. Rt. No.859, Municipal Administration and Urban Development (J) Department, dated 20.12.2008 approving proposal for establishment of integrated solid waste management project for GHMC under public private partnership mode and also under Jawaharlal Nehru National Urban Renewal Mission (for short, hereinafter referred to as "JNNURM") with a total estimated cost of Rs.897 crorers with JNNURM funds subject to the conditions that if the proportionate share of the Government of India and the State Government of the eligible project cost under JNNURM is not materialized, the GHMC shall bear that cost and the rest of the project cost shall be borne by the Concessionaire. In order to execute such a huge project, the second respondent ought to have invited global tenders but did not do so and instead received bids from only two parties i.e. the third respondent herein and M/s. Gujarat Enviro Protection and Infrastructure Limited. Respondents 1 and 2 agreed to pay tipping fee to the Concessionaire for the purpose of collection and transportation of the solid waste and basing on the rates quoted by the above mentioned bidders, the bid of the third respondent herein was accepted. THE third respondent accepted for the tipping fee of Rs.1431/- per metric ton of solid waste and accordingly the Government has issued G.O.Ms.NO.136, Municipal Administration and Urban Development (J) Department, dated 19.2.2009 approving the L1 bid of the third respondent herein with tipping fee of Rs.1431/- per metric ton for implementation of the integrated MSW management programme in GHMC, and the second respondent was directed to take necessary further action. THE second respondent entered into impugned agreement dated 21.2.2009 with the third respondent, known as "Concession Agreement", for the purpose of collection, transportation, processing and disposal of MSW and several clauses of the said agreement are not only contrary to law but are biased in favour of the third respondent and injurious to the public at large. THE terms of the agreement enable the third respondent to have a total control over all the operations pertaining to the collection of MSW from all the primary sources, storing the MSW, transportation and final disposal of the same. THE third respondent is given with a power to collect @ Rs.25/- from each individual household of the GHMC excluding slum dwellers and households below poverty line, and it is authorized to collect from the commercial establishments at the rates prescribed by the Director of Municipal Administration. THE second respondent will pay @ Rs.1431/- per ton of MSW to the third respondent. THE third respondent is authorized to use the MSW for any purpose and dispose of the same in any manner and also to appropriate the proceeds from the utilization of the MSW to the fullest extent. THE tipping fee is subject to yearly upward revision @ 5%. THE present dump sites of the GHMC would be under the control of the third respondent and the same can be used by it towards providing parking facilities without anything to be paid to GHMC. THE project site of Ac.320.00 at Jawahar Nagar will also be under the control of the third respondent and the employees/officers of the GHMC cannot have any right to interfere with the operations of the third respondent. Appointment of independent engineer and replacement of the engineer, would be done subject to the choice of the third respondent. All the existing infrastructure like dumber binds, vehicles, transfer stations will stand handed over to the third respondent for its exclusive usage. THE third respondent would be employing its own men for implementing the project which would result in removal of the existing staff of GHMC connected with the solid waste disposal.

(2.) Terms and conditions of the Concession Agreement dated 21.2.2009 are contrary to the provisions of Chapter XIV of GHMC Act, 1955 and MSW Rules, 2000. Neither of them empowers respondents 1 and 2 to completely handover all the functions pertaining to collection of the MSW from the primary sources, storage, transportation and disposal to a third party exclusively. As per the Act, MSW is a property of the municipality and hence, proceeds derived from the treatment of MSW shall belong to the second respondent, but not to third respondent. But, the terms of the Concession agreement run contrary to the above and totally detach the second respondent from all its statutory duties and confer the same on the third respondent for its benefit. Further, the fixing of the tipping fee with the periodical upward revision is a gross abuse of power on the part of respondents 1 and 2 and it is intended to cause undue and immense benefit to the third respondent in a calculated manner. At present, the second respondent is incurring cost of Rs.570/- per metric ton of MSW towards collection, transportation and dumping and there are no justified reasons for fixation of the tipping fee at Rs.1431/- per metric ton when all the existing infrastructure, dump yards and project site of GHMC are being transferred in favour of the third respondent free of cost. The impugned agreement is intended to benefit the third respondent in a large scale at the cost of public exchequer and at the cost of infringing the law and it is mala fide, colourable exercise of power on the part of respondents 1 and 2. There is likelihood of hundreds of existing employees of GHMC being removed from service as soon as the third respondent starts implementing the agreement. The petitioner, which is deeply interested in protecting rights of its members and also in seeing that the second respondent functions in accordance with the provisions of the GHMC Act, 1955, is having locus standi to file this Writ Petition. Though the investment of the third respondent is only partial, benefits derived by it are undue leading to illegitimate enrichment of the third respondent. At present, the second respondent is incurring around Rs.595/- per metric ton for collection and disposal of the solid waste, whereas under the impugned agreement, an amount of Rs.1431/- is agreed to be paid to the third respondent. Apart from the tipping fee, the third respondent is benefited substantially in various ways by collecting amounts from household, ice cream parlours, bakeries, corporate hospitals, hotels, lodging places, etc. at the rates mentioned in proceedings No.2807/AC(H&S)/GHMC/2010, dated 29.07.2010 issued by the first respondent. Respondents 1 and 2 do not have any power to delegate right to collect garbage charges to a third party permitting him to appropriate such an amount without accounting it to the municipal fund. Apart from above, by virtue of the impugned agreement, the third respondent would be entitled to -sell, distribute compost/manure/energy and other recyclables derived from MSW for a period of 25 years; to receive all revenue that may be generated through advertising using the movables, fixed assets of the project including those transferred from GHMC; right to appropriate, possess and control etc. all the buildings, structures and infrastructures that may be existing with reference to MSW management in GHMC as of the date of agreement and the GHMC shall hand over existing infrastructure like dumber bins, vehicles, transfer stations, etc., which will be used free of cost by the third respondent. Further more, 50% of the project cost would be borne under JNNURM scheme by the Central and State Governments failing which GHMC is going to bear it. There is no provision in the impugned agreement to absorb the existing staff or to continue the existing staff by the third respondent. Third respondent is not under obligation to carry on MSW collection storage and transport operations through the existing employees of GHMC. Hence, this Writ Petition.

(3.) The second respondent filed additional counter affidavit stating inter alia as follows. At the instance of the Government of India and on the insistence of Andhra Pradesh Pollution Control Board and Central Pollution Control Board for implementation of MSW Rules, 2000, the second respondent corporation initiated an integrated solid waste management project for collection segregation, storage, transportation, processing and disposal of MSWs scientifically to prevent the pollution in the GHMC area. After following transparent procedure, the second respondent selected the third respondent for execution of the said work and entered into the impugned agreement dated 21.2.2009 and in pursuance of the same, handed over garbage dump yard at Jawaharnagar and Shameerpet and the work has already been commenced. THEre is no apprehension for the permanent employees or contingent employees working in the second respondent corporation of loosing their employment with the said agreement. THE petitioner union, representing a small group of employees working in the corporation, has no locus standi to question the agreement.