Gujarat High Court
Amitkumar Pravinsagar Nayak vs Ahmedabad Municipal Corporation on 17 September, 2021
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 51 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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AMITKUMAR PRAVINSAGAR NAYAK
Versus
AHMEDABAD MUNICIPAL CORPORATION & 3 other(s)
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Appearance:
AADITYA D BHATT(8580) for the Applicant(s) No. 1
CHANDNI S JOSHI(9490) for the Applicant(s) No. 1
MR BHAVESH BABARIYA(6788) for the Opponent(s) No. 3
MR DEVARSHI C SHAH(5545) for the Opponent(s) No. 4
MR NIRAL R MEHTA(3001) for the Opponent(s) No. 2
MR SATYAM Y CHHAYA(3242) for the Opponent(s) No. 1
MS TRUSHA K PATEL(2434) for the Opponent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 17/09/2021
ORAL JUDGMENT
Page 1 of 27
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C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 (PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. The present writ-application has been filed in Public Interest seeking the following reliefs:
"A. Your Lordship be pleased to issue appropriate writ, order or direction directing the respondents to immediately take steps to afloat a Fresh Tender, in confirmity with the Bio- Medical Waste Management Rules, 2016, quashing and setting aside the renewal of the contracts awarded to the Respondent No. 3 and 4, dated 20.01.2018 and subsequent Resolution No. 113/2017-18, passed thereof.
B. Pending admission, hearing and final disposal of this petition, I. Your Lordships may be pleased to stay the award of the Contract to the respondent no.3 and 4 dated 20.01.2018 and subsequent Resolution No. 113/2017-18 passed thereof.
II. Your Lordships may be pleased to appoint an independent committee comprising of Independent Members may scrutinize the conditions of Bio-Medical Waste Management in the Hospitals of Ahmedabad and submit a report before the Hon'ble Court.
C. Be pleased to pass such other and further orders as may be deemed fit and proper in the interest of justice."
2. The facts giving rise to this writ-application may be Page 2 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 summarized as under:
2.1 The writ-applicant claims to be a public spirited person and has filed the present writ-application in view of the following:
"1.1. Biomedical Waste Management in Ahmedabad: The petition is being filed in the interest of: I. Proper Public Health Management, by way of proper Bio- Medical Waste Management in compliance with the Bio- Medical Waste management Rules, 2016.
II. Proper Public Exchequer Management by way of seeking a floating of a Tender for the purposes of Biomedical Waste Management.
It is stated that there are several irregularities with respect to the method of biomedical waste management that is adopted by the municipal corporation in the city of Ahmedabad. This irregularity are to the extent that the threaten the entire gamut of public health management in the city of Ahmedabad.
1.2. Award of contract to two private Ltd. Companies in perpetuity:
The petitioner by way of this petition inter-alia also challenges the award of the contract to 2 companies:
1. Medicare Environmental Management Pvt. Ltd.
2. Pollucare Biomedical Waste Management Pvt. Ltd.
The aforesaid companies are the respondent No. 2 and Page 3 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 3 respectively in the present public interest litigation. It must be noted here that the tender for the allotment of the work of biomedical waste management, was originally floated in year 2004. And subsequent thereto there is no floating of any tender and under the pretext of one or the other reason this contracts are being renewed without floating any fresh tender. Till now it could amount only to irregularity in terms of improper Public Exchequer management, however, with the coming into force of new Biomedical Waste Management Rules, 2016, framed in exercise of the powers conferred by Sections 6, 8 and 25 of the Environmental (Protection) Act, 1989 (29 of 1986), when the renewal of the contract itself says that the aforesaid companies have to follow the practices under the old Biomedical Waste Management Rules of 1998, there is a serious non-compliance with the provisions of law by the Ahmedabad Municipal Corporation."
2.2 The source of information mentioned in the writ- application for filing the present writ-application is on the basis of the information received through whistle blowers in various departments of Ahmedabad Municipal Corporation as well as newspaper items and CAG report. According to the writ-applicant, the Government of India published the Biomedical Waste Management Rules, 2016 (for short 'the Rules, 2016') in supersession of the Biomedical Waste (Management and Handling) Rules, 1998 (for short 'the Rules, 1998'). In the new Rules, 2016, several changes and additions Page 4 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 have been made to further improve the collection, segregation, processing, treatment and disposal of the biomedical wastes in an environmentally sound manner. It is stated that the new Rules i.e. Rules, 2016 mandate that the operator of common biomedical waste treatment facility shall transport the biomedical waste from the premises of an occupier to any offsite biomedical waste treatment facility only in the vehicles and containers, which have been properly labelled. The new Rules, 2016 also mandate that untreated human anatomical waste, animal anatomical waste, soiled waste and, biotechnology waste shall not be stored beyond a period of 48 hours, while microbiological waste and all other clinical laboratory waste shall be pre-treated by sterilization before packing and sending to the common biomedical waste treatment facility.
2.3 It is the case of the writ-applicant that the respondent no.1 - AMC awarded the contract to operate healthcare facilities for collection, storage, reception, transport, treatment and disposal of biomedical waste in favour of the two private companies, i.e. respondent nos. 3 and 4 herein. It is further stated that as per the Central Pollution Control Board (CPCB) guidelines, a Common Biomedical Waste Treatment Facility (CBWTF) shall not be awarded to cater to HCEs situated beyond a radius of 75 km. and in cases where service of Common Biomedical Waste Treatment Facility (CBWTF) is not Page 5 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 available, the occupiers shall set up requisite biomedical waste equipment, like incinerator, autoclave or microwave, shredder prior to commencement of its operation, as per the authorization given by the prescribed authority. It is stated that an additional CBWTF may be allowed if number of beds handled by an agency exceeds 10,000, however, at present there are only 2 of 13 agencies in the State covering more than 10,000 beds and one agency covering approximately 250 K.M. of distance. It is stated that the scrutiny of records by GPCB reveal that out of 19 agencies operating across the State, two agencies were still covering more than 10,000 beds. It is stated that, it is therefore a gross non-compliance with the terms and conditions of old Rules, 1998 as well as new Rules, 2016. It is stated that the Central Vigilance Commission has taken a stern note of such practices adopted by few private contractors. It is stated that, this indicate corrupt nexus / collusion of the officials of the Municipal Corporation with the private contractors.
2.4 It is further the case of the writ-applicant that, the contracts which were allotted to the respondent nos.3 and 4 herein, were originally awarded in the year 2004, however, subsequently, no tender was floated and the contracts are being renewed from time to time without issuance of fresh tender. It is stated that the renewal of contract states that respondent nos. 3 and 4 are required to follow the practices Page 6 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 under the old Rules, 1998, the resultant effect of which is serious non-compliance of the provisions of law by the Ahmedabad Municipal Corporation. The respondent nos. 3 and 4 as well as the AMC are mandatorily required to follow the Rules, 2016. In view of above, the reliefs as sought for as stated hereinabove are prayed for by the writ-applicant.
3. We have heard Mr. Aaditya Bhatt, the learned counsel appearing for the writ-applicant, Mr. Satyam Chhaya, the learned counsel appearing for the Ahmedabad Municipal Corporation, Mr. Niral Mehta, the learned counsel appearing for the Gujarat Pollution Control Board, Ms. Trusha K. Patel, the learned counsel appearing for the respondent no.3 and Mr. Devarshi C. Shah, the learned counsel appearing for the respondent no.4.
SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANT:
4. Mr. Aaditya Bhatt, the learned counsel appearing for the writ-applicant has mainly submitted that the hospitals generate substantial quantity of wastes, which result into health and environmental hazards. In order to streamline the waste collection, processing and disposal practices, the Government of India in 1998 notified Rules, 1998, which came to be revised from time to time. He further submitted that on 28.03.2016, the Government of India published the Rules, 2016 in supersession of the earlier Rules, 1998. He would Page 7 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 submit that proper implementation of the Rules, 2016 is required and the Principal Secretary, Forest and Environment Department is responsible for implementation of the said Rules, 2016. The GPCB is the model agency to coordinate / monitor the activities and enforce the BMW Rules through its 22 regional offices. He would submit that, there are various guidelines issued by the CPCB and the same are required to be followed stringently.
4.1 He would submit that it came to the notice of the writ-applicant by letter of the year 2018 written by the Municipal Commissioner to the department of Waste Management, Ahmedabad Municipal Corporation, that the original contracts allotted to the two private companies i.e. respondents Nos.3 and 4 on 27.09.2004 and 04.12.2004 respectively be renewed. The contracts were awarded to both the companies in the year 2004 and the said contracts were floated without issuance of any tender in the year 2004. The respondent No.1 - AMC has awarded the contracts by renewal instead of fresh tender and without incorporating new terms and conditions of the new Rules, 2016. The said information has been pleaded on the basis of the information received through whistleblowers in the various departments of the Ahmedabad Municipal Corporation as well as newspapers articles and CAG report.
Page 8 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 4.2 He lastly submitted that, in view of the information available, the contract awarded to the respondent nos. 3 and 4 dated 20.01.2018 and subsequently resolution no. 113/2017-18 be quashed and appropriate steps be taken to afloat a fresh tender in confirmity with the Rules, 2016.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1 -
AMC :
5. Mr. Sattayam Chhaya, the learned counsel appearing for the respondent No.1 - Ahmedabad Municipal Corporation has filed reply and has stated thus:
"6. At the outset, it is submitted that so far as compliance of the provisions of Bio-medical Waste Management Rules, 1998 ('Rules, 1998' for short) and the amended Rules, 2016 are concerned, the answering Corporation has not compromised its mandatory provisions and the contract in question is subject to fulfillment of all mandatory provisions as referred to in Rules, i.e. Rules, 1998 and Rules, 2016. Meaning thereby, respondent Nos. 3 and 4 are under obligation to follow all mandatory provisions contained in Rules, 2016 and even as per the tender condition as well as work order, respondent nos. 3 and 4 are under obligation to follow the mandatory provisions applicable in the field of disposal of bio-medical Page 9 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 waste. Not only that, the contractor are under obligation to fulfill all mandatory provisions of Rules and / or policies which are amended time to time by the competent authority.
7. It would not be out of place to mention here that as per the provisions contained in the Rules, 2016, respondent nos. 3 and 4 and / or any other Unit dealing in the disposal of bio-medical waste are under obligation to obtain appropriate license / consent to operate from the Gujarat Pollution Control Board and principally Gujarat Pollution Control Board is the competent authority who regulates and control the affairs of such bio-medical waste units, more particularly in consonance with the provisions of Environment Protect Act, 1986 read with the provisions of Rules, 2016 and / or any other amended rules which are introduced from time to time. Thus, the contentions raised by the writ-petitioner with respect to non-fulfillment of the mandatory provisions of Rules, 2016 at the end of the respondent nos. 3 and 4 are concerned, the deponent would restrain from making any comment as it would be for respondent nos. 3 and 4 and / or respondent no.2 to satisfy this Hon'ble Court about such contentions.
8. The above referred sub-clause (I) of Clause-18 clearly suggests that the contractor is under obligation to install and run the plant absolutely in consonance with the guidelines of CPCB and GPCB and the rules Page 10 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 prescribed time to time in that regard. Further, even the latest work order pursuant to renewal in question includes the condition that contractor shall abide by all prevailing rules. Thus, apprehension voiced by the petitioner that answering Corporation has not mandated the contractor to follow prevailing rules is ill-founded.
9. It is submitted that in view of provisions contained in the Gujarat Provincipal Municipal Corporation Act, 1949, the answering corporation is empowered to enter into any contract for the purpose of fulfillment of its statutory duties. It is to be noted that there are four major hospitals established by Ahmedabad Municipal Corporation within city limits of Ahmedabad, i.e. (i) V.S. Hospital at Ashram Road, (ii) L.G. Hospital at Maninagar, (iii) Shardaben Hospital at Saraspur and (iv) Nagri Hospital at Ellisbridge. Over and above, above referred major hospitals, answering Corporation is also managing different hospitals and Urban / Community Health Centers in view of prevailing policy of the Central Government. Now, as per the provisions of Rule, 1998 r/w. Rules, 2016 and its amendment from time to time, Rules, 2016 makes it obligatory to the respondent Corporation that bio- medical waste which generates on daily basis at above referred four major hospitals and health centres [as of now 80 Health Centers / Hospitals are in operation within city limits of Ahmedabad] are required to be Page 11 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 disposed of in view of provisions of Rules, 2016. The bio-medical waste collected and generated at all above referred Health Care Units including four major hospitals are required to be processed scientifically for the purpose of disposal in consonance with the Rules, 2016. Thus, in view of above referred facts, the answering Corporation had awarded the contract to respondent nos. 3 and 4 initially for a period of 10 years with effect from 27.09.2004 in favour of respondent no.3 whereas initial contract in favour of respondent no.4 was awarded on 04.12.2004.... Thus, it is clear that as per the provisions of Gujarat Provincipal Municipal Corporation Act, 1949 read with the tender document and its conditions, the answering Corporation was having all authority and powers to renew the contract if the respondent authority so wishes and thinks it fit in the interest of public at large. It is submitted that the above referred two contracts initiated in the year 2004 were subjected to renewal for further period of three years from 2014. At the relevant point of time, the amount which was determined was Rs.18/- per kg in favour of contractor with respect to collection of bio-medical waste and disposal of the same from above referred Health Care Units of the corporation... At that time also, no objection whatsoever was raised by the petitioner and / or any other individual and that period came to expire in the year 2017. It is submitted that prima-
Page 12 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 facie respondent nos. 3 and 4 are undertaking their assignments satisfactorily and the Corporation has not received any complaint at least from the hospital and / or from GPCB about any default on the part of the contractor. Further, as per the prevailing rates approved by the Government, the State Government is paying an amount of Rs.24/- per kg to its contractor over and above the cost of transportation, with respect to bio-medical waste generated in the Government hospital. Meaning thereby, similar contractor working with the Government are receiving an amount of Rs.24/- per kg plus cost of transportation for the purpose of collecting and disposal of bio-medical waste in tune with the Rules, 2016. It is to be noted here that the Corporation has decided to renew the contract in question for further period of five years on the same line which was decided since 2004 and the revised rate is Rs.24 per kg and no cost of transportation is awarded. Thus, the price which offered by the present contractor and accepted by the Corporation is considerably cheaper than price which is paid by the Government for the same statutory obligation. Thus, there is no question of any favouritism etc. as sought to be canvassed by the petitioner.
10. It would not out of place to mention here that being Statutory Authority, the answering Corporation is under obligation to consider many aspects such as Page 13 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 past experience, smooth operation, financial burden, procedural hurdles and the paramount consideration would be the public health and the interest of public at large. Thus, the peculiar facts and circumstances of the present case and the totality of the facts which are mentioned hereinabove, clearly suggest that answering Corporation has decided to renew the contract in question after considering all above referred parameters and, therefore, ultimately Standing Committee, vide impugned Resolution dated 20.01.2018 being No. 113/2017-18, has renewed the contract on appropriate terms and conditions. Thus, in view of above referred aspects, it is submitted that the impugned decision of the Corporation is just and proper, rational and reasonable and there is no mala fide and / or procedural lapse. Thus, in the interest of justice, proceedings of captioned Public Interest Litigation are required to be dropped."
5.1 In view of the above, Mr. Satyam Chhaya, the learned counsel appearing for the respondent Ahmedabad Municipal Corporation has submitted that the respondent - AMC is duty bound to follow the rules and regulations prescribed by the authority from time to time and is complying with the same, and therefore, the proceedings under the Public Interest Litigation may be dropped.
6. The respondent No.3 has filed an affidavit dated Page 14 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 24.4.2019. Paragraphs Nos.5, 6 and 7 are produced thus :-
"5. It is said and submitted that in views of provisions contained in the Gujarat Provincial Municipal Corporation Act, respondent no.1 had awarded the contract fora period of10yearsw.e.f. 27.09.2004 in favour of present deponent. It is to be noted here that Sub-clause 3 of Clause 18 of tender speaks that "Party will be initially awarded contract for the 10 years from the date of order of tender. Further extension if any required; will be finalized by mutual agreement." It is submitted that answering respondent company was doing satisfactory work as per the prescribed Rules. Therefore in 2014, contract initiated in the year 2004 was renewed for further three years. It is submitted that deponent was performing its duty in accordance with law & satisfactory and there was no complaint from any hospital, board or any private person. Therefore, respondent no.1 had renewed the contract for further period of five years. Answering respondent company has to obtain certificate for satisfactorily carrying out operation from all the hospitals etc. and thereafter answering respondent company can put bills of that month. Till to date,neither any complaint is made qua performance of answering respondent nor any hospital has withheld such certificate due to non-satisfactory operation. Annexed here to and marked Annexure R-1 Colly. are the copy of forwarding letter and summary alongwith certificate issued by the all the 81 hospitals or health Centers for the month of February 2019.Page 15 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022
C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021
6. It is submitted that so far as compliance of the provisions of Bio-medical Waste Management Rules, 1998 (herein after referred to as "Rules 1998") and the amended Biomedical Waste Management Rules 2016 (herein after referred as "Rules 2016") are concerned, the answering respondent is following all the mandatory provisions of Rules 1998 and/or Rules 2016 so also all the tender conditions as well as work order issued by the respondent no.1 herein. It is further submitted that deponent is also following the mandatory provisions applicable in the field of disposal of bio-medical waste as per the Rules 2016.
7. It is to be pointed out that sub-clause of Clause 18 of tender clearly shows that the "contractor has to install and run the plant in accordance with the pollution control board guidelines/ Rules prescribed at the time and has to take care of any amendments issued by respective authority time and again." Deponent herein says that answering respondent company has invested huge money for installation of machinery as per Rules 1998 and Rules 2016 for disposal of bio-medical waste. For disposal of bio-medical waste, company needs mainly three type of machinery 1) Incinerator
2) Autoclave 3) Shredder and cost of the said machineries is around 92 lacs. Every year, company is spending around 8 lacs to 9 lacs rupees for maintenance of said machinery.
Further the deponent incurred approximately 40 lacs in upgrading the incinerator machinery. Furthermore, answering respondent company has 9 vehicles for collection of said Page 16 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 biomedical waste from the hospitals etc. and cost of the 9 vehicles is around Rs. 50 lacs. Annexed hereto and marked Annexure R2 Colly. are the copy of Photographs of plant and machinery, copy of bills of machinery and vehicles purchased by answering respondent so to execute the contract given to it. It is further submitted that preset deponent has obtained permission - license from the Gujarat Pollution Control Board (hereinafter referred to as "Board" ) from time to time and Board is the competent authority who regulates and control the affairs of bio-medical waste units. Annexed here to and marked as Annexure R-3 Colly . are copies of permission/license received from said board."
In view of above, it is submitted by the respondent No.3 that it has followed all the prevalent policies, law and rules while making request for renewal of contract in question and that there is no breach of contract committed by the respondent Company. The respondent Company at present is also following the mandatory provisions applicable in the field of disposal of bio-medical waste as per Rules, 2016. In accordance with Clause (18) of the Rules, 2016 the respondent has installed the machinery for disposal of bio-medical waste.
ANALYSIS:
7. In view of the submissions made by the learned counsels appearing for the respective parties, the writ-application under public interest is mainly to ensure that the biomedical waste Page 17 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 which is generated by the hospitals which result in serious health and environmental hazards be put to an end. As stated by the writ-applicant, the Rules, 2016 have been notified to efficiently manage the biomedical waste generated by the hospitals. The salient features of the BMW Management Rules, 2016 as produced in the writ-application are produced thus:
"Salient features of BMW Management Rules, 2016 The ambit of the rules has been expanded to include vaccination camps, blood donation camps, surgical camps or any other healthcare activity;
Phase-out the use of chlorinated plastic bags, gloves and blood bags within two years;
Pre-treatment of the laboratory waste, microbiological waste, blood samples and blood bags through disinfection orsterilisation on-site in the manner as prescribed by WHO or NACO;
Provide training to all its health care workers and immunize all health workers regularly;
Establish a Bar-Code System for bags or containers containing bio-medical waste for disposal;
Report major accidents; (g) Existing incinerators to achieve the standards for retention time in secondary chamber and Dioxin and Furans within two years;
Bio-medical waste has been classified into 4 categories instead 10 to improve the segregation of waste at source; Procedure to get authorization simplified. Automatic authorization for bedded hospitals. The validity of Page 18 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 authorization synchronized with validity of consent orders for Bedded HCFs. One time Authorization for Non-bedded HCFs; The new rules prescribe more stringent standards for incinerator to reduce the emission of pollutants in environment;
Inclusion of emissions limits for Dioxin and furans; State Government to provide land for setting up common bio- medical waste treatment and disposal facility; No occupier shall establish on-site treatment and disposal facility, if a service of common bio-medical waste treatment facility is available at a distance of seventy-five kilometer. Operator of a common bio-medical waste treatment and disposal facility to ensure the timely collection of bio-medical waste from the HCFs and assist the HCFs in conduct of training."
8. We are conscious about the importance of Bio-medical waste management and the same has been elaborately considered by this Court in the Special Civil Application No.12235 of 2017, more particularly the effect of Biomedical waste generated by the hospitals and the essentialities to over come such hazards. Paragraph Nos.33, 45 to 50 reads thus :-
"37. The crux of the matter is the tussle between the ecoenvironmental maintenance and industrialisation. To answer as to the need of the day for the right to life, viz., whether we should maintain ecofriendly environment or opt for Biomedical Waste Process Page 19 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 Unit, which is essential and necessary for disposal of the hazardous medical waste, neither the ecoenvironment alone nor the industrial growth by itself will meet the human needs in the world today. Then, what is desirable is to maintain a balance, by being resilient, but not rigid; organic, but not static; liberal, but not strict; wider, but not narrow, as to both ecofriendly environment and units, like the Biomedical Waste Process Unit, that are to be worked out harmoniously, to meet the challenges and other requirements. The medical care is vital for our life and health, but the waste generated from the medical activities represents a real problem of living nature and human world. Improper management of waste generated in health care facilities causes a direct health impact. There need not be any debate on this issue. Over a period of time, the medical science has progressed like anything. It has its advantages, but as the two sides of the coin, there are disadvantages also. All human activities produce waste. We all know that such waste may be dangerous and needs safe disposal. Industrial waste, sewage and agricultural waste pollutes the water, soil and air. It can also be dangerous to the human beings and environment. Similarly, the hospitals and other health care facilities generate lots of waste, which can transmit infections, more particularly, HIV, Hepatitis B and C, Tetanus, etc., to the people, who handle it or come in contact with it. The biomedical waste management has recently emerged as an issue of major concern, not only to Page 20 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 the hospitals, nursing home authorities, but also to the environment. The proper management of biomedical waste has become a worldwide humanitarian topic today. The hospital waste is a potential health hazard to the health care workers, public and flora and fauna of the area. India generates around three million tonnes of medical waste every year and the amount is expected to grow at 8% annually. Such are the reasons why the Biomedical Waste Process Units are the need of the hour today. The surveys carried out by the various agencies show that the health care establishments in India are not giving due attention to their waste management. After the notification of the Bio Medical Waste (Management and Handling) Rules, 1998, these establishments are solely streamlining the process of waste segregation, collection, treatment and disposal".
"45 The Environment (Protection) Act 1986 (The Environment Act), was also enacted for environmental protection, regulation of discharge of environmental pollutants and handling of hazardous substances speedy response in the event of accidents threatening environment and deterrent punishment to those who endanger human environment, safety and health.
46 By exercising the power conferred under Sections 6 and 25 of the Environment (Protection) Act, 1986, the Environment (Protection) Rules, 1986 (The Environment Rules) were made by the Central Page 21 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 Government.
47 The Government of India, in exercise of powers conferred upon it, by Sections 5, 8 and 25 of the Environment (Protection) Act, 1986 framed the BioMedical Waste (Management and Handling) Rules, 1998. The Central Pollution Control Board, in the year 2003, issued guidelines for the Common BioMedical Waste Treatment Facility.
48 According to the Biomedical Waste Management Rules, 2016, the "biomedical waste treatment and disposal facility"
means any facility wherein treatment, disposal of biomedical waste or processes incidental to such treatment and disposal is carried out, and includes common biomedical waste treatment facilities and "operator of a common biomedical waste treatment facility" means a person who owns or controls a Common Biomedical Waste Treatment and Disposal Facility (CBWTF) for the collection, reception, storage, transport, treatment, disposal or any other form of handling of biomedical waste. The Biomedical Waste Management Rules, 2016 restricts occupier for establishment of onsite or captive biomedical waste treatment and disposal facility, if a service of common bio medical waste treatment and disposal facility is available within a distance of seventyfive kilometer, as installation of individual treatment facility by health care facility (HCF) requires comparatively high capital investment. In addition, it requires separate dedicated and trained skilled manpower and Page 22 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 infrastructure development for proper operation and maintenance of treatment systems. The concept of CBWTF is not only addresses such problems but also prevents proliferation of treatment technologies in a particular town or city. In turn, it reduces the monitoring pressure on regulatory agencies. By running the treatment equipment at CBWTF to its full capacity, the cost of treatment of per kilogram biomedical waste gets significantly reduced. Its considerable advantages have made CBWTF popular and proven concept in most part of the world.
49 I am not impressed by the submission of the learned counsel appearing for the applicants that, as there is an apprehension in the minds of the people at large that the unit will lead to pollution, the private respondents should be asked to shift the unit to some other place. No citizen can assert, as a matter of right, that as he or she does not like the BioMedical Waste Process Unit coming in his or her village, the same should not be allowed to be operated. The unit put up by the private respondents is not a movable property. It is a huge unit installed with modern machineries and other technical equipments to process the biomedical waste. The right to life and live in a clean environment, although may be a basic human life or a fundamental right, yet the same is not absolute. As discussed at length above, the biomedical waste has got to be processed in accordance with the rules and regulations laid down by the Central Page 23 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 Pollution Control Board. If, according to the applicants, operating a BioMedical waste Process Unit is an evil, then ignoring the biomedical waste and allowing it to be disposed of without being processed, is a greater evil and would lead to more health hazard. The importance of the BioMedical waste Process Unit should not be undermined, and in my view, the applicants are unnecessarily hyper in this regard. The private respondents have been put to the strictest of the terms for the purpose of functioning and operation of the unit and they can still be put to certain more terms to ensure that the same does not lead to any pollution. The revised guidelines for the Common BioMedical Waste Treatment and Disposal Facility, as issued by the C.P.C.B. itself, provide that the buffer zone distance from the notified residential area may be reduced to less than 500 meters by the State Pollution Control Board or the Pollution Control Committee without referring the matter to the C.P.C.B. by prescribing the additional control measures such as (i) adoption of best available technologies (BAT) by the proponent of CBWTF; (ii) prescribing stringent standards for operation of the CBWTF by the SPCB/PCC; (iii) adoption of zero liquid discharge by the CBWTF and (iv) in case of any complaints from the public, then CBWTF should prove that the facility is not causing any adverse impact on environment and habitation in the vicinity. If SPCB/PCC is not in a position to resolve the issue relating to buffer zone while selecting the site for CBWTFs, in such a case, SPCBs/PCCs may refer the matter to CPCB.
Page 24 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 50 The stringent standards prescribed are more or less taken care of in the consent order of the G.P.C.B. and this issue can be looked into further by the G.P.C.B., if need be."
In view of the aforesaid elaborate discussion on the necessity of compliance of Bio medical waste Rules, 2016 the only aspect that we need to delve now is to ensure that the same is implemented in its true letter and spirit.
9. At this juncture, it is apt to refer to the "Guidelines for Monitoring Compliance of Common Biomedical Waste Treatment Facilities by State Pollution Control Boards / Pollution Control Committees" as issued by Central Pollution Control Board (CPCB). The said guidelines have been issued by the CPCB in compliance of the order dated 20.07.2020 passed by the National Green in Original Application No.110 of 2020. The said guidelines elaborately deal with monitoring of the disposal of Bio Medical Waste and also provide for development of mechanism for grievance redressal. It is a positive step towards the menace and evil of Bio medical waste as it categorically includes grievance redressal mechanism to be developed with the use of online facilities as well. This takes care of the actual concern of citizens which is to be dealt with by the authorities acting for the said purpose.
10. We are in agreement with the writ-applicant that the Page 25 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 biomedical waste which is generated by the hospitals are required to be controlled and the Rules, 2016 are also required to be followed in its true spirit. It is stated by Mr. Satyam Chhaya, the learned counsel appearing for the respondent No.1
- AMC that the AMC is following the Rules, 2016 in its true spirit. Mr. Chhaya, the learned counsel has stated that the contractor is under obligation to install and run the plant absolutely in consonance with the guidelines of the CPCB and GPCB and the Rules prescribed from time to time in the same regard. The latest work order in favour of the respondents nos. 3 and 4 renewing the contract includes the conditions that the contractor shall abide by all the Rules, 2016. The question as to testing the process of renewal of contract is not necessary to be answered in the present set of facts especially when the question as to suitability of the private respondents is the task of the corporation and there is no defect shown in the decision making process. The adherence and compliance to the Bio Medical Rules is even otherwise an essential part of the contract and if there is any default on part of any party then the same is governed by the contract and if any such default if still goes unnoticed then it is always open for the writ- applicant or any other public spirited person to point out before this Court.
11. In view of above, we are of the opinion that, no further directions are required to be issued. At the same time, we Page 26 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022 C/WPPIL/51/2018 JUDGMENT DATED: 17/09/2021 reiterate that all the parties shall abide by the Rules, 2016 and any further rules and regulations which may come into the effect from time to time for controlling the bio-medical waste which is generated by the hospitals. This Court will also take serious note in the event of non-adherence to the said Rules, if the same would be pointed out in future about non-compliance of any of the regulations as stated above.
11.1 Ms. Trusha K. Patel, the learned counsel appearing for the respondent no.3 and Mr. Devarshi C. Shah, the learned counsel appearing for the respondent no.4 have assured us that the Rules, 2016 are being strictly complied with and shall be complied with by the companies in true spirit.
12. In view of the above directions, the present writ- application stands disposed of.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 27 of 27 Downloaded on : Sun Jan 16 15:50:24 IST 2022