HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 10 Case :- WRIT - C No. - 39077 of 2015 Petitioner :- M/S A2z Waste Management (Varanasi) Ltd. Respondent :- State Of U.P. & 4 Others Counsel for Petitioner :- Abhishek Srivastava,V.C. Mishra Counsel for Respondent :- C.S.C.,A.S.G.I./2015/1447,Q.H. Siddiqui,Udayan Nandan,Vivek Varma Hon'ble Arun Tandon,J.
Hon'ble Ashwani Kumar Mishra,J.
While examining the facts, as disclosed in the present writ petition and apprehending that a large financial scam is operating in the State of Uttar Pradesh in respect to establishment of Solid Waste Management Plants in various cities of the Uttar Pradesh, specifically in big cities; like Varanasi, Kanpur, Meerut, Moradabad and other cities. A Division Bench of this Court passed a reasoned order calling for an affidavit of the Chief Secretary of the State in response to the facts and the queries, as noted in the said order. The order dated 17.08.2015 reads as follows:-
"Counter affidavit filed on behalf of the Nagar Nigam is taken on record.
If the facts disclosed in the writ petition are correct then in our prima facie opinion it is an other financial scam operating in the State of U.P. in the matter of establishment of Solid Waste Management Plants, specifically in big cities; like Varanasi, Kanpur, Meerut, Moradabad and other cities. We find that hundreds of crore of rupees from the public exchequer have been provided to the Nagar Nigams for establishment of such solid waste management plants, but all in vain.
In the case of Varanasi, we find that the plant was to be commissioned within eight months from the date of execution of the Public Private Partnership agreement. More than 5 years have elapsed from the date of execution of the agreement as on date. Whatever was established has become non-functional.
We find that the bank guarantee, as accepted, was issued by a private firm and not by a nationalized bank or any other financial institution having legal sanctity to issue such bank guarantee in favour of Government department/Local Bodies. The State and its officers are alleged to be colluded in the entire transactions of payment of money to the persons, who were not a party to the contract with the State Government or Local Body and are alleged to have entered into a contract with the concessionary, which was allotted the contract only.
In our opinion not only public money has been defrauded in a planned manner, the cities are being made to become a dump of filth by these officers including the State authorities, who actively participate in the awarding of contract and distribution of money.
A comprehensive response is required from the Chief Secretary of the State on following issues:-
(a) In how many cities Government money has been released for the purposes of setting up of a solid waste management plant. The names of the cities and the amount of money released as on date shall be disclosed separately.
(b) How many of these plants are functional must be disclosed.
(c) How the State and the local bodies are managing the solid waste in places where plants are non-functional.
(d) Why this Court may not recommend criminal action against the State officers responsible for creating a situation where the health of the common residents of the city has been put to jeopardy.
The status of investigation as per the first information report lodged, as disclosed in the present writ petition, including the details of the persons arrested till date along with the status of the departmental proceedings initiated against officers shall be disclosed to the Court.
The Chief Secretary shall also inform the Court as to how construction agency/division was created in a statutory body created under the U.P. Water Supply and Sewage Act, 1975. The relevant statutory provisions in that regard shall also be referred.
Counsel for the Nagar Nigam, Standing Counsel, Counsel for the Union of India and Counsel for respondent nos. 3 and 4 shall file their respective affidavit by the next date both in reply to the contents of the writ petition as well as in reply to the what has been recorded above by us.
Counsel for the respondents pray for and are granted two weeks' time for the purpose.
The matter shall be listed at the top of the list on 31st August, 2015".
It is sad to note that the Chief Secretary of the State of U.P. instead of reacting to the facts disclosed in the order of this Court, has chosen to give evasive reply in a matter where crores and crores of public money had been sanctioned and released in the matter of establishment of Solid Waste Management Plants in the cities of the State of Uttar Pradesh. In fact as against 32 proposals sanctioned, the money released only in 7 cities, the plants are operating as per the affidavit of the Chief Secretary himself, but what action has been taken by him to ensure that the plants in other cities become operational, and in what manner the financial loss caused to the State is to be taken care of are completely missing from the affidavit.
It is an admitted position before us on record that the Bank guarantee for a sum of Rs. 7.95 crores was furnished by the third party namely M/s. Accord Hydroair Pvt. Ltd. was not from a Nationalized Bank nor from a Financial Institution. The Chief Secretary admits that the Bank guarantee was accepted by the authorities of Nagar Nigam, Varanasi and by the Construction and Design Services (C&DS) without caring to look into the terms and conditions of the tender notice, which required furnishing of Bank guarantee of State Bank of India or its associates Banks only.
From the affidavit of the Chief Secretary, we further find that proposal for setting of Solid Waste Management Plants running into crores of rupees were approved and financial sanction was granted in respect of 32 cities of the State of Uttar Pradesh and according to the Chief Secretary himself, only in 7 other the plants are operational. In big cities like Agra, Kanpur, Lucknow, Mathura, Meerut, Varanasi, Aligarh, Gorakhpur, Jhansi, Moradabad, Bareilly, Ghaziabad etc., the plants are not operational.
We had required the Chief Secretary to inform the Court as to how the cities can be permitted to become the dumping ground for solid waste and to explain to the Court as to how the local bodies are managing the solid waste in absence of Solid Waste Management Plants.
In reply, the Chief Secretary in vague and general terms has submitted that the Urban Local Bodies are disposing of the waste at designated places till fullfledged solid waste plant is set up. How and where the waste is being collected and dumped, has not been disclosed. It has been stated before us that financial support is being provided for safe and scientific disposal of solid waste but with no particulars of the actual disposal.
To the query of the Court as to what action has been taken against the officers responsible in the matter of acceptance of bogus bank guarantee, it has been stated that FIR has been lodged against M/s. Accord Hydroair Pvt. Ltd. as well as against Sri B.N.Tiwari, the owner of the M/s. Accord Hydroair Pvt. Ltd. why action has not been taken against the officers of Nagar Nigam and the responsible officers of Construction and Design Services (C & DS), who has accepted such bogus bank guarantee has not been disclosed.
There appears to be an attempt to protect the State Officers and to take action only against private players. All the concerned officers of Nagar Nigam and C&DS in the matter of acceptance of bogus bank guarantee must also be dealt with.
This Court is of the opinion that a time has come, when it has to be ascertained as to who all are at the fountainhead of such misutilisation of government money and what role is being played by the highest officers of the State. Taking of action against smaller officers, private players will not suffice. The Court has to pin point the responsibility of highest officers involved in such transactions as also against the officers who are making the cities of State of Uttar Pradesh a dumping ground of solid and other waste, which will necessarily include toxic waste.
The inaction on the part of the officers of the State for not taking efficient steps for disposal of the solid waste from big cities like Allahabad, Kanpur, Varanasi etc., speaks volumes about the manner in which the State cares for the general health of the public at large.
Since the Chief Secretary in his affidvit has raised an objection that we are treating the present petition as a Public Interest Litigation, we deem it proper to convert this writ petition to a Public Interest Litigation. Let the matter be listed before the Bench having jurisdiction to hear the PIL.
The Chief Secretary will also disclose the status of the investigation in respect of the FIR lodged already lodged.
We further direct the Chief Secretary of the State to appear in person before the concerned Bench on the next date fixed along with his personal affidavit and so as to explain what immediate steps will he take against the highest officers in the matter. How the State proposes to remove solid waste from big cities and to dispose it of. Details of the places must be furnished where the solid waste is to be disposed of in these big cities. We are also of the view that where the Solid Waste Management Plants have become non operational, every attempt to make them operational. Action must be taken against officers responsible for the situation.
Let this matter be listed before the appropriate Bench having jurisdiction on 29th October, 2015 i.e. when the Chief Secretary is already required to appear before this Court in another matter. All other prayer made by the petitioner shall be considered by the appropriate Court on 29.10.2015.
The respondents may also file counter affidavit by the next date.
Order Date :- 9.10.2015 Lbm/ Ashish Pd.