Gujarat High Court
Kiritbhai Gordhanbhai Alias Naranbhai ... vs State Of Gujarat on 19 August, 2019
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, A.C. Rao
C/SCA/7358/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7358 of 2018
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 7358 of 2018
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KIRITBHAI GORDHANBHAI ALIAS NARANBHAI PATEL & 1 other(s) Versus STATE OF GUJARAT & 3 other(s) ============================================================================== Appearance:
for the Petitioner(s)No. 2 MR SATYAM Y CHHAYA for the Petitioner(s)No. 1MS MAITHILI MEHTA, AGP for the Respondent(s)No. 1 MR HASIT DAVE for the Respondent(s)No. 4 NOTICESERVEDBY DS(5)for the Respondent(s)No. 2 MS MANISHA LAVKUMAR SHAH with MR RAJVI MEHTA AND MR VIRAL K SHAH, ADVOCATES for the Respondent(s)No. 3 ============================================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date: 19/08/2019 ORALORDER (PER: HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. On 11th September 2018, this Court passed the following order :
"1. Petitioners desire to restart their biomedical waste treatment plant situated at Uttarsanda, District:Kheda. Operation of which has been halted by the Gujarat Pollution Control Board ('GPCB' for short) by order dated 25.04.2018. This litigation has checkered history. At this stage, it is not necessary to record minute facts. Suffice it to note that at one stage, the petitioners were granted permission for operation of Page 1 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER the plant. The petitioners did start their commercial activities. Later on, the GPCB detected certain breaches in the pollution emission parameters and put them to prohibitory orders.
2. During two or three sessions, we have heard learned advocates for the parties at considerable length. The main dispute between the petitioners and the GPCB can be narrowed down to two aspects. First is, according to the GPCB, the equipments installed by the petitioners do not provide for minimum two seconds of retention time of gases between two chambers. To elaborate this aspect, we may note that the bio-waste management process envisages reduction of pollution in the emissions by passing the gases in two chambers, each chamber having specific purpose. According to the GPCB, unless and until such gases are retained in first chamber for minimum of two seconds before they are transferred to the second chamber for further treatment, the desired result would not be achieved. This is so statutorily prescribed also. The defense of the petitioners is that the machinery installed has sufficient capacity of retention time in excess of two seconds as prescribed. This has been so certified by the Engineers of the manufacturers of the said machinery which is enclosed along with an affidavit dated 07.09.2018 filed by the petitioners.
The second objection of the GPCB is that the petitioners have installed a mechanism which infuses fresh Page 2 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER air into the 'Chimneys' before the gases are released in the atmosphere. According to the Engineer of GPCB who is present before us, this would dilute the pollutants and essentially mask the results of test reports. Prime objection of the GPCB with this mechanism that the test results could be distorted.
3. With the first of these two aspects, since the affidavit of the petitioners is served on the respondents today, we obviously do not expect the respondents to clarify the aspect today itself. They would have time to consider the contents of this affidavit and respond later. However, even if the petitioners are meeting with this mandatory minimum two seconds retention time requirement, they cannot be allowed to operate the plant unless and until they meet with the stringent requirement of pollution control. The same can be ascertained only by taking samples and subjecting them to laboratory testing. With respect to the second objection of GPCB, we broadly understand that if the mechanism for infusing oxygen is deactivated at the time when the samples are taken, the GPCB could have no objection to the existence of this mechanism at the time of operation.
4. Under the circumstances, following interim directions are issued:
I. The Engineers of GPCB shall visit the plant on 17.09.2018 at 11:00 a.m. to take the samples of the plant in operating Page 3 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER condition. It would be open for the Engineer of the petitioners to remain present at that time to facilitate and assist this process too. At the time when these samples are being taken, the mechanism for oxygen infusing shall be deactivated. If there is a valve as we are informed, the same shall be closed.
II. For this exercise, it would be open for the petitioners under this order to procure biomedical waste for disposal which shall not exceed 225 kg. If upon completion of the exercise of taking samples, there remains any biomedical waste unused, it would be open for the petitioners to operate the plant for the limited purpose of disposing such material. Howsoever, such process shall not carry on beyond 17.09.2018. In the unlikely event of any unused biomedical waste thereafter, it would be the responsibility of the petitioners to return or dispose it off by supplying to other similar agencies.
III. The GPCB would instruct GEB to restore normal power supply for one day on 17.09.2018 which would enable the petitioners to operate the plant with the aid of such electricity supply instead of relying on the generators. At the end of the day, electricity supply would be discontinued.
IV. The report of the GPCB would be placed before this Court on next date of hearing i.e. 03.10.2018. It would be open for the respondents to file reply to the further Page 4 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER affidavit dated 07.09.2018 filed by the petitioners today. "
2. Thereafter, on 8th October 2018, this Court passed the following order :
"1. Pursuant to our order dated 11.09.2018, further tests were carried out by the GPCB. A Report of the same is produced along with an additional affidavit dated 17.09.2018 filed by one Shri Vijaykumar Rakholia.
2. Learned counsel for the petitioners would contend that majority of the parameters have been found to be in compliance with the Rules. Only minor breaches are detected, which also, the petitioners are willing to cure as soon as possible.
3. We notice that pursuant to such Test Report, the GPCB has issued show-cause notice dated 29.09.2018 to the petitioners. The following grounds have been raised;
"1. Flue gas dilution system not removed but it is provided with manual valve to control the flow and there is no separate valve to close the outside duct line for dilution.
2. During sampling fugitive emission was observed coming out from the secondary chamber from the various joint of the plates, which indicate that negative pressure was not made.Page 5 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER
3. During sampling temperature in the secondary chamber was decreased as low as 741 o C.
4. Analysis Report of stack emission sample collected from stack attached to BMW incinerator shows that concentration of PM is 83.10 mg/NM3.
5. Measuring system for automatic recording of parameters was not in operation.
6. Unit is not complied with respect to sitting criteria as residential area is located within 250 meters.
7. Unit has not set up ambient air quality monitoring stations."
4. Learned counsel for the petitioners submitted that all, except ground no.6 noted above, pertains to the parameters to be complied by the petitioners. The petitioners would make all necessary modifications to meet with the requirements of GPCB, for which, the representative of the petitioners would seek guidance from GPCB and take appropriate measures. For this purpose, S.O to 16.10.2018.
5. We note that ground no.6 raised in the said show-cause notice pertains to the minimum distance to be maintained by the Unit from the residential area, Page 6 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER which is the subject matter of dispute between the parties. We would hear all sides on this aspect at a later point of time. "
3. Thereafter, on 16th October 2018, this Court passed the following order :
"1. On 08.10.2018 we had passed an order primarily on the ground that the petitioners would make necessary modifications to meet with all requirements of GPCB. Learned counsel Shri Anshin Desai for the petitioner stated that majority of the modifications have already been carried out. Minor details which have been left out would be complied shortly. The unit of the petitioner would be ready for testing within a week.
2. Let GPCB carry out such test examinations on 23.10.2018. For such purpose, the formula previously devised under our order dated 11.09.2018 would apply with changes mutatis-mutandis as required. For ready reference, relevant portion of the order is reproduced below:
"4. Under the circumstances, following interim directions are issued:
I. The Engineers of GPCB shall visit the plant on 17.09.2018 at 11:00 a.m. to take the samples of the plant in operating condition. It would be open for the Engineer of the petitioners to Page 7 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER remain present at that time to facilitate and assist this process too. At the time when these samples are being taken, the mechanism for oxygen infusing shall be deactivated. If there is a valve as we are informed, the same shall be closed.
II. For this exercise, it would be open for the petitioners under this order to procure biomedical waste for disposal which shall not exceed 225 kg. If upon completion of the exercise of taking samples, there remains any biomedical waste unused, it would be open for the petitioners to operate the plant for the limited purpose of disposing such material. Howsoever, such process shall not carry on beyond 17.09.2018. In the unlikely event of any unused biomedical waste thereafter, it would be the responsibility of the petitioners to return or dispose it off by supplying to other similar agencies.
III. The GPCB would instruct GEB to restore normal power supply for one day on 17.09.2018 which would enable the petitioners to operate the plant with the aid of such electricity supply instead of relying on the generators. At the end of the day, electricity supply would be discontinued."
3. Stand over to 30.10.2018. "
Page 8 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER4. Pursuant to the orders referred to above passed by this Court, a team of the officials of the GPCB carried out the inspection on 23rd October 2018. The GPCB, in its report dated 23rd October 2018, has pointed out the following deficiencies :
"1. Flue gas dilution system has not been removed but instead of removing dilution lines they have removed manual valve which was earlier installed to control the air flow for required oxygen supply in the primary chamber.
2. During sampling procedure, it is noticed that at three to four instances, fugitive emission is coming out from waste charging door of the primary chamber at the time of waste charging procedure. At three to four instances fugitive emission is also noticed from the hole provided for installation of thermocouple as well as from the hole provided for fuel burner.
3. Programmable Logic Control based control system is installed and measurement system for operational parameters for automatic record of carbon monoxide (CO), carbon dioxide (CO2), Oxygen (O2) is installed but not in operation as sensors are yet to be calibrated at site.
4. Not complied with respect to siting criteria as residential area is located within a distance of 250 meters in place of 500 meters.
5. Ambient air quality monitoring stations are not set up.
Page 9 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER6. Combustion efficiency as calculated as per data of measurement during sampling is 93.75% in place of 99%.
7. Analysis report of same shows that concentration of particulate matter is 29 milligram/normal cubic meter. During inspection concentration of O2 was observed 19% hence as per provision (j) in the note mentioned in Provision 1 of schedule-II of the Bio Medical Waste Management Rules
- 2016, O2 corrected value of particulate matter will be 145 milligram/normal cubic meter which is higher than permissible limit of 50 milligram/normal cubic meter."
5. The response of the writ-applicants to the various deficiencies as noted in the report of the GPCB is as under :
"We are equipped with latest laboratory facility which is confirmed by the board.
Each and every vehicle is equipped with GPS facility which provides exact location, time duration and transport details of the route.
Proper segregation rooms provided with pucca floor and wall tiles to avoid any kind of spillage/leakage activities.
According to the guidelines, such compliance is made by HAZA CLEAN which is confirmed by the board.
We have complied with each and every guidelines provided and plant modification is achieved accordingly.Page 10 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER
We have equipped the same according to the directions by the board.
CEMS facility is equipped.
We have upgraded the facility according to the directions by the board.
We have planted 2000 nilgiri trees which surrounds the area of 2000 sq.ft."
6. The picture as on date is quite hazy. According to the GPCB, the unit is not complying with the norms and parameters and is causing pollution. Whereas, on the other hand, the case of the writ-applicants is that they are being unnecessarily harassed on account of political interference. The matter has reached to a stage where disputed questions of fact have cropped up. The only alternative now left is to ask the writ-applicants to make good their case before the GPCB that they are complying with all the necessary parameters as prescribed in law and the unit is not causing any kind of pollution.
7. We would like to give one last chance to the writ-applicants to establish or to make good their case that all the deficiencies pointed out in the report dated 23rd October 2018 have been taken care of.
8. For the present, we deem fit to issue the following directions :
Page 11 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER(1) The GPCB shall inform the GEB to restore the power connection in the unit at the earliest. Once the power is restored, the writ-applicants shall operate the unit on trial basis.
(2) The writ-applicants are permitted to purchase the biodegradable waste for the purpose of trial run so that the necessary inspection can be once again undertaken.
(3) The GEB shall restore the power connection by Thursday, i.e. 22nd August 2019. Once the power is restored, the writ-applicants are permitted to have a trial run for a period of eight days and immediately thereafter inform the GPCB to come for the necessary inspection.
(4) In the mean time, the GPCB shall remain prepared for carrying out the investigation of the unit, but this time, along with the officials of the GPCB there shall be one expert from the DDIT, Nadiad, as well as one expert from the IIT, Mumbai. The GPCB shall see to it that when they reach the place where the unit has been installed, for the purpose of inspection, the two officials from the DDIT, Nadiad and IIT, Mumbai respectively, are also present and the inspection is carried out in their presence. Thereafter, a joint report shall be prepared and placed before this Court.
9. Further orders shall be passed upon receipt of the fresh report of the inspection.
Page 12 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019 C/SCA/7358/2018 ORDER10. We expect the officials of the GPCB to carry out an impartial inspection of the unit along with the two members from the DDIT, Nadiad and IIT, Mumbai.
11. Direct service of the order is permitted. One copy of this order shall be furnished to Ms.Manisha Lavkumar Shah, the learned senior counsel appearing for the GPCB, for its onward communication at the earliest.
12. Stand over to 3rd September 2019.
(J. B. PARDIWALA,J.) (A. C. RAO,J.) /MOINUDDIN Page 13 of 13 Downloaded on : Tue Aug 20 20:41:09 IST 2019