Gujarat High Court
Uttarsanda Gram Panchayat & 3 vs State Of Gujarat & 4 on 21 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/12235/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12235 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of
the judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India
NO
or any order made thereunder ?
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UTTARSANDA GRAM PANCHAYAT & 3....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR RR MARSHALL, SENIOR ADVOCATE WITH MR GAURAV CHUDASAMA,
ADVOCATE for the Petitioner(s) No. 1 - 4
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
MR SATYAM Y CHHAYA, ADVOCATE for the Respondent(s) No. 4 - 5
MR VAIBHAV A VYAS, ADVOCATE for the Respondent(s) No. 3
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 21/09/2017
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ORAL JUDGMENT
1 The draft amendment is allowed.
2 By this application under Article 227 of the Constitution of India,
the applicants call in question the legality and validity of the order dated 26th May 2017 passed by the Special Secretary of the Revenue Department (Appeals) at Ahmedabad, by which the S.S.R.D. allowed the revision application filed by the private respondents herein, thereby quashing and setting aside the order passed by the Collector, Kheda, dated 27th February 2017.
3 The facts giving rise to this application may be summarised as under:
3.1 The applicant No.1 is a Gram Panchayat through the Sarpanch of the village. The other applicants are the residents of village : Uttarsanda.
The applicant No.3 is the son of the applicant No.4. The private respondents herein have established a BioMedical Waste Processing Unit at Uttarsanda. The Gujarat Pollution Control Board, by the order dated 2nd September 2015, has granted the necessary consent and authorisation to operate the BioMedical Waste Processing Unit in exercise of the powers conferred under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974, Section 21 of the Air (Prevention and Control of Pollution) Act, 1981, and the Authorisation under Rules 3(C) and 5(5) of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 framed under the Environmental Protection Act, 1986.
3.2 The case of the applicants is that the private respondents should not be permitted to operate the BioMedical Waste Processing Unit as it Page 2 of 71 HC-NIC Page 2 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT would prove to be injurious to human life. According to the applicants, for the purpose of processing the biomedical waste, the unit will be using the incinerator. It is mandatory, according to the guidelines issued by the Central Pollution Control Board (C.P.C.B.) to use the incinerator in processing the biomedical waste. The incineration is a controlled combustion process where the waste is completely oxidized and the harmful microorganisms present in it are destroyed and / or denatured under very high temperature. According to the applicants, the medical waste incinerators are the leading source of dioxin and mercury in the environment.
3.3 The applicants have pointed out that there is a residential society located at a distance of about 242 meters from the unit, and about twenty five families are residing in the said society. According to the applicants, they are espousing the cause of all the residents of the village : Uttarsanda and the nearby areas.
3.4 It is also the case of the applicants that the private respondents have put up illegal construction without obtaining any N.A. permission on the land bearing survey No. / block No.1817 paiki, ledger No.791. It is pointed out that the N.A. application filed by the private respondents came to be rejected by the respondent No.2 keeping in mind the public health and safety of the villagers. It appears from the materials on record that the order of the Collector, declining to grant N.A. permission was made a subjectmatter of challenge before the S.S.R.D. and the S.S.R.D. quashed and set aside the order of the Collector and directed the Collector to grant the N.A. permission. Pursuant to the order passed by the S.S.R.D., it appears that the Collector has passed a fresh order granting the N.A. permission.
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3.5 It is further pointed out by the applicants that, in the past, one
writ petition, in the nature of a Public Interest Litigation No.38 of 2014, was filed by the applicant No.4 herein in this Court for the very same cause. However, the said petition came to be dismissed by a Division Bench vide the judgment and order dated 5th February 2015.
4 In the aforesaid background, the applicants have prayed for the following reliefs:
"24 A. This petition may be admitted and allowed.
B. Your Lordships may be pleased to issue appropriate, order and direction to quash and set aside the orders dated 26052017 passed by the respondent no.1 passed in Revision Application No.MVV/BKHP/KHEDA/01/2017.
B.1 Your Lordships may be pleased to direct the respondent no.2 to take appropriate steps for removing the illegal construction made by the respondent no.4 and 5 in the disputed unit.
C. Pending hearing and final disposal of this petition, implementation and execution of the order Dt. 26052017 passed by the respondent no.1 passed in Revision Application No.MVV/BKHP/KHEDA/01/2017 may be stayed.
D. Any other relief that may be deemed just and proper may also be kindly granted."
5 Mr. Marshall, the learned senior counsel appearing with Mr. Gaurav Chudasama, the learned counsel for the applicants vehemently submitted that the private respondents should not be permitted to operate the unit and they should be asked to shift the unit to any other place. The learned senior counsel pointed out that the respondent No.2 i.e. the Collector, Kheda rightly rejected the application for N.A. permission filed by the private respondents herein dated 16th May 2016. According to the learned senior counsel, the S.S.R.D., for no reason, Page 4 of 71 HC-NIC Page 4 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT interfered with the order of the Collector and has directed the Collector to grant the necessary N.A. permission to operate the unit. The learned senior counsel submitted that the S.S.R.D. failed to consider the parameters of the grant of the N.A. permission and wrongly laid emphasis on the fact that the private respondents had invested a huge amount by entering into an M.O.U. with the State of Gujarat. It is submitted that the importance should have been given to the issue of public health rather than the unit likely to provide employment to 100 - 150 persons. It is further pointed out that it is not correct to assert that there is no biomedical collection centre within the districts of Kheda, Mahisagar, Nadiad and Anand. According to the learned senior counsel, there is a C.B.W.T.F. Unit in the Anand district itself, which is at a distance of about 40 kms. from the present C.B.W.T.F. Unit.
6 Mr. Marshall, the learned senior counsel submitted that the medical waste incinerator releases into the air a wide variety of the pollutants including dioxin and furans, metals (such as lead, mercury and cadmium), particulate matter, acid gases (hydrogen chloride, sulphur dioxide) carbon monoxide and nitrogen oxides. These emissions have an adverse effects on public health and the environment. Dioxin is a known carcinogen that has been linked to the birth defects, immune system disorders and other harmful health effects. Mercury is a potent neurotoxin that can cause developmental defects and harm the brain, kidneys and lungs.
7 It is submitted that the incineration produces both toxic air emissions and toxic ash residue. The air emissions affect the local environment and may affect the communities hundreds or thousands of miles away. The ash residue is sent to the landfills for disposal, where the pollutants have the potentials to leach into the groundwater.
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8 It is submitted that the medical waste incinerators do not have the
advanced air pollution control devices and are frequently run by the staff of the hospital, who are not professionally trained. Once a incinerator is built or installed, it represents a long term financial commitment from the health care institutes. It removes any incentive to pursue more rational and cost effective approaches to the problem. The medical waste comprises of blood soaked bandages, syringes, IV sets, broken glasses, ampules, urine and blood bags, amputated limbs and other body parts. The medical waste is highly infectious and can cause serious harm if not managed properly. Improper management of the medical waste causes a serious threat to the patients, health care workers, etc. Several national and international studies have shown that out of the entire medical waste stream only 1520% is infectious or hazardous; and the rest is simply general waste. The problem becomes mammoth only when the small quantity of hazardous waste is mixed with the innocuous bulk of general waste. In view of the above facts, it is submitted that the authorities are not justified in permitting operation of a medical waste incinerator in a residential area. It is only the pathological waste category which requires incineration and is not amenable to nonburn technologies.
9 It is submitted that the Executive Engineer, in his report called for by the Collector, while considering the application for N.A. permission, gave a negative opinion stating that there are residential premises nearby the unit in a periphery of less than 500 meters. According to the learned senior counsel, even the Health Department has given a negative opinion to the Collector so far as the grant of the N.A. permission is concerned.
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10 It is pointed out that vide order dated 3rd July 2017, this Court
granted the adinterim order in terms of para 24[C]. Despite the same, the Collector proceeded to grant the N.A. permission.
11 In such circumstances referred to above, it is submitted that the private respondents should be asked to shift the unit to any other place, preferably at a place, which is declared as an industrial zone.
12 On the other hand, this application has been vehemently opposed by Mr. Satyam Chhaya, the learned counsel appearing for the private respondents. Mr. Chhaya would submit that this petition on the face of it, is not maintainable. According to Mr. Chhaya, the issues raised in this petition were a subjectmatter of the public interest litigation before this Court and which came to be dismissed. Once the Division Bench of this Court thought fit to dismiss the public interest litigation filed by one of the applicants herein, then the very same cause cannot be agitated by challenging the N.A. permission granted by the Collector pursuant to the order passed by the S.S.R.D. It is submitted that it is a indirect method of overcoming the judgment and order passed by the Division Bench having attained finality. Mr. Chhaya, the learned counsel would submit that this petition is lacking in bona fide. It is at the instance of other unit holders, who are likely to be affected from their business point of view. It is submitted that some external force is behind this petition. According to Mr. Chhaya, the issues raised in this petition should not be looked into by this Court because this Court is not an expert in the subject of operation of the BioMedical Waste Treatment Plant. Such complex issues should be left best for the experts to decide. Mr. Chhaya would submit that the need of the hour today is an effective BioMedical Waste Treatment and Disposal facility. This waste treatment and disposal facility is governed by the rules and regulations laid down by the Central Page 7 of 71 HC-NIC Page 7 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT Pollution Control Board and the provisions of law in this regard. According to Mr. Chhaya, the learned counsel, when the Gujarat Pollution Control Board has thought fit to grant the necessary consent and authorisation, it is deemed that all the relevant aspects have been considered by the Board, and only thereafter, the consent has been accorded. Mr. Chhaya, the learned counsel seeks to rely upon the following averments made in his detailed reply:
"3 The respondent No.4 herein is owner and occupier of the land bearing block No.1817 at village Uttarsand Taluka Nadiad District Kheda. The land in question is admeasuring 8295 sq. mtrs. It would not out of place to mention here that the land in question is utilize as NA land from more than 3 decades as godown. Be it that may the fact remained that the respondent no.4 had entered into an agreement / lease agreement with the respondent no.5. A copy of the lease agreement dated 10.04.2013 is annexed hereto and marked as Annexure R I to this reply. It is to be noted here that the respondents herein are intended to construct unit of "Common Bio Medical Vest Management Facility" (CBWTF for short). For said purpose, land in question is required to be converted into NA, more particularly in view of the Section 65B of the Code. Section 65B reads as under:
"65B Use of certain lands for bonafide industrial purpose (1) Notwithstanding anything contained in section 65 or 65A, where
(a) any land used or held for the purpose of agriculture or, as the case may be, for any nonagricultural purpose not being an industrial purpose is:
(i) designated for the use of industrial purpose in the draft or final development plan or draft or final town planning scheme under the Gujarat Town Planning and Urban Development Act, 1976; or
(ii) situated in the area where no plan or scheme referred to in sub clause (I) is in force and is designated by the State government, by notification in the Official Gazette, for the use of such industrial purpose as may be specified therein, having regard to such factors as may be prescribed by rules made under this Act in this behalf: Provided that nothing in this subclause shall render invalid the use of land for a bonafide industrial purpose in pursuance of the Page 8 of 71 HC-NIC Page 8 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT provisions of the Bombay Land Revenue (Gujarat Amendment) (Second) Ordinance, 1996 during the period when the said Ordinance was in force notwithstanding that the said land is not designated for such use under this Act, and
(b) the occupant of such land wishes to use such land or part thereof (I) for a bonafide industrial purpose other than the purpose of manufacture or storage of any chemical or petrochemical, It shall be lawful for him to use such land for such bonafide industrial purpose without the permission of the collector subject to the fulfillment of the following conditions, namely:
(a) the occupant has a clear title to such land,
(b) such land or part thereof
(i) is not shown as reserved for a public purpose in draft or final development plan or draft or final town planning scheme under the Gujarat Town Planning and Urban Development Act, 1976
(ii) is not notified for acquisition under the Land Acquisition Act, 1894 or any other law for the time being in force,
(iii) does not fall within the alignment of any road plan prepared by the State Government or the command area of any irrigation project,
(iv) is not situated within thirty meters from the boundary of any land held for the purpose of railway by the Central Government or the Indian Railway Company Ltd., or
(v) is not situated within fifteen meters of the high voltage transmission line;
(vi) is no situated within five kilometers of the periphery of the area within the jurisdiction of any Area Development authority or Urban Development Authority constituted under the Gujarat Town Planning and Urban Development Act, 1976;
Provided that nothing in this item shall render invalid the use of land for a bonafide industrial purpose in pursuance of the provisions of the Bombay Land Revenue (Gujarat Amendment) (Second) Ordinance, 1996 when the said Ordinance was in force notwithstanding that the said land falls within five kilometers of Page 9 of 71 HC-NIC Page 9 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT the periphery of the area within the jurisdiction of any Area Development Authority or Urban Development Authority.
[Provided further that the State Government may exempt, by notification in the Official Gazette, the use of land for such bonafide industrial purpose from the fulfillment of the condition mentioned at item (vi) above by an occupant or class of occupants as it may deem fit.] (II) for the purpose of manufacture of storage of any chemical or petrochemical, It shall be lawful for him to use such land for such bonafide industrial purpose without the permission of the Collector subject to the fulfillment of the following conditions, in addition to the conditions mentioned in subclause (I), namely: Such land or part thereof is not situated within two kilometers from the boundary of
(i) an ancient monument declared as 'protected monument' under subsection (I) of section 3 of the ancient Monuments Preservation Act, 1904.
(ii) an ancient and historical monument declared as 'protected monument' under subsection (3) of section 4 of the Gujarat Ancient Monuments and Archaeological sites and Remains Act, 1965;
(iii) a forest land or waste land declared as 'reserved forest land' under section 3 of the Indian Forest Act, 1927;
(iv) a forest land or waste land known as 'protected forest' under section 29 of the Indian Forest Act, 1927
(v) an area declared as 'sanctuary' under subsection (I) of section 180 of the wild Life (Protection) Act, 1972; or
(vi) an area declared as 'national park' under section 35 of the wild Life (Protection) Act, 1972 (2) (a) The occupant shall comply with the provisions of any law for the time being in force or any order or direction of the Central Government or State Government or any corporation owned or controlled by such Government, Government Company, local authority in relation to use of land for a Bonafide industrial purpose under subsection (1) before the land is put to use for such purpose.
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(b) When an occupant commences the use of the land for a Bonafide industrial purpose under subsection (i) he shall within thirty days from the date of commencement of the use of land for a Bonafide industrial purpose, send a notice of the date of commencement of such use, along with other particulars in such form as may be prescribed by rules made under this Act, to the Collector and endorse a copy thereto to the Mamlatdar.
(3) Where, on the receipt of such notice along with other particulars sent by the occupant under clause (b) of subsection (2), the Collector, after making such inquiry as he deems fit
(a) is satisfied that the occupant of such land has validly commenced the use of the land for a Bonafide industrial purpose under subsection (i), he shall issue a certificate to that effect to the occupant in such form and within such period as may be prescribed by rules made under this Act.
(b) is not so satisfied, he shall, after giving the occupant an opportunity of being heard, refuse to issue such certificate: Provided that no such certificate shall be issued under clause (a) unless the conversion tax leviable under Section 67A is paid.
(4) (a) Where the occupant fails to send the notice and other particulars under clause (b) of subsection (2) within the period specified therein, he shall be liable to pay, in addition to the non agricultural assessment leviable under this Act, such fine not exceeding ten thousand rupees as the Collector, may, subject to rules made under this Act, direct
(b) (i) Where the occupant commences the use of such land for industrial purpose despite the nonfulfillment of any of the conditions specified in subsection (1) or
(ii) where certificate is refused to the occupant under clause (b) of subsection (3) He shall be liable, in addition to the payment of non agricultural assessment leviable under this Act, to restore such land to its original use within such period as the Collector may specify in a notice served on such occupant in this behalf.
(c) Where such occupant does not restore the land to its original use within the period specified by the Collector, in the notice served under clause (b)
(i) he shall be liable to pay such fine not exceeding five thousand Page 11 of 71 HC-NIC Page 11 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT rupees and in addition, such daily fine not exceeding one hundred rupees per hectare or part thereof of land not so restored for each day during which such land is not restored to its original use, after the expiry of the period specified in such notice as the Collector may, subject to rules made under this Act, direct and
(ii) The Collector shall take such steps as he thinks fit to get such land restored to its original use and collect the cost incurred in this behalf from such occupant as an arrear of land revenue.
(5) (a) The occupant shall commence industrial activity on such land within three years from the date of the notice sent by him to the Collector under clause (b) of subsection (2) and commence production of goods or providing of services on such land within five years from such date:
Provided that the period of three years or, as the case may be, five years may, on an application made by the occupant in that behalf, be extended from time to time by the Collector in such circumstances as may be prescribed by rules made under this Act.
(b) Where the occupant fails to commence industrial activity or production of goods or providing of services within the period specified in clause (a) or the period extended under the proviso to clause (a), he shall be liable to pay, in addition to nonagricultural assessment leviable under section 48, nonagricultural assessment at the rate of five rupees per square meter of the land with effect from the date of expiry of the period of three years or five years or, as the case may be, the period extended under the proviso to clause
(a) till he commences industrial activity or as the case may be, commences production of goods or providing of services.
ExplanationI For the purposes of this section, section 48 and section 67a, the expression "Bonafide industrial purpose" means an activity of manufacture, preservation or processing of goods (other than the hazardous and toxic chemicals specified in part II of the Schedule I to the Manufacture, Storages and Import of Hazardous Chemicals Rules, 1989 made under the Environment (Protection) Act, 1986 and for the time being in force) or any handicraft, or industrial business or enterprise, carried on by any person and includes construction of industrial buildings used for the manufacturing process or purpose, or power projects or port projects and ancillary industrial usage like research and development, godown, canteen, office buildings of the industry concerned, or providing housing accommodation to the workers of the industry concerned or establishment of industrial estate including a cooperative estate or service industry or tourism or Page 12 of 71 HC-NIC Page 12 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT cottage industry.
ExplanationII For the purposes of this section, an occupant shall be deemed to have commenced the use of land for a Bonafide industrial purpose from the date on which he ceases to use the land for agricultural or nonagricultural purpose existing immediately before the date of such ceaser."
4 In view of the above referred provisions of law it would become clear that the land in question is required to be converted into NA in consonance with the provisions of the Section 65B of the Act. It would not out of place to mention here that NOC (consent for establishment) is required to be obtained from Gujarat Pollution Control Board even before establishment of such unit for CBWTF. Therefore, an application is filed in consonance with the provisions of law more particularly in view of the provisions of Bio Medical Vest Management & Handling) Rules, 1998 amended Rules 2003 to the Gujarat Pollution Control Board. The said application is duly considered by the Gujarat Pollution Control Board and respondent no.3 had issued NOC (consent to establishment) till 03.07.2018. A copy of the said NOC issued by the Gujarat Pollution Control Board along with other requisite documents are annexed hereto and marked as Annexure R II colly to this reply. In view of above it would become clear that the competent authority i.e. Gujarat Pollution Control Board had already granted NOC.
5 It is submitted that for conservation of the land into NA under section 65B of the Code, an application was filed before the respondent no.3 District Collector, in consonance with the provisions of the Code read with the Rules, however, in view of the some technical defect of non production of the 7/12 abstract and nonproduction of the requisite sanctioned plan and other documents, the said application filed under section 65B of the Code is not accepted by the collector, KhedaNadiad on 12.02.2014. A copy of the above referred order dated 12.02.2014 is annexed hereto and marked as Annexure R III to this reply. It would not out of place to mention here that the application is not accepted on technical ground of the nonproduction and the same is filed ('Daftare Karel Che'). As per prevailing policy of the State Government, if an application is not accepted on some technical ground, more particularly in view of nonproduction of the certain documents, concerned parties would always have liberty to file fresh application with all necessary particulars. It would not out of place to mention here that in view of the provisions contained in Bio Medical Vest (Management & Handling) Rules, 1998 and in view of the catena of decisions, establishment of CBWTF is essential and necessary to dispose of by medical vest.
6 It would not out of place to mention here that in Anand as well as Kheda District there is no unit of CBWTF, and therefore, some Page 13 of 71 HC-NIC Page 13 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT unscrupulous person may be in view of the connivance with the other establishment in other District, have started raising grievance against legal and proper establishment at the end of the answering respondent. It would not out of place to mention here that one Writ Petition being Public Interest Litigation I.e PIL No.38 of 2014 before this Hon'ble Court. However, in view of the order dated 20.02.2014 said PIL is disposed of by taking note of the order dated 12.02.2014 passed by the District Collector, KhedaNadiad. A copy of the order dated 20.02.2014 is annexed hereto and marked as Annexure R IV to this reply. As stated above, in view of the order dated 12.02.20o14, the respondents were well within their rights to file fresh application in consonance with the provisions of the law after fulfillment of all requirement. Therefore, yet another application filed by the respondent no.4 on 19.06.2014 along with all requisite documents. Copies of the above referred application dated 19.06.2014 filed under Section 65B of the Code and other relevant documents are annexed here and marked as Annexure V colly to this reply.
7 It is submitted that above referred application filed for consideration of the application under Section 65B of the Code filed on 19.06.2014 is duly considered by the competent authority and all the lower authorities have forwarded their positive opinion to District Collector, KhedaNadiad in favour of the petitioners to grant NA. Copies of the opinion forwarded by the Circle Officer dated 13.07.2013, Mamlatdar dated 30.07.2015, Deputy Collector dated 19.08.2015 are annexed hereto and marked as Annexure VI colly to this reply. In view of the above referred opinions, it would be evident that all the concerned authorities have forwarded their positive opinion and now there is no hindrance against grant of the NA. The petitioners have submitted all requisite documents with District Collector, KhedaNadiad for grant of the NA. It would not out of place to mention here that certain local political leaders are taking undue interest in the matter for obvious reasons. The intentions of such unscrupulous persons are apparent and self speaking. Either they want to pressurize the answering respondents with arm twisting method to extort money or they are acting on behest of business rivals. It is also possible that other business rivals who are having monopoly in the area do not want new establishment in Kheda District. Thus, this Hon'ble Court can take judicial note of the fact that in view of the huge population in Kheda and Anand district, there are many medical dispensaries, hospital and other pathology laboratory, who are generating huge Bio Medical Vest everyday. In view of the prevailing policy of the Central Government, such Bio Medical Vest is required to be dispose of after giving proper treatment. It is in the interest of the public at large and the health and hygiene of all concerned. Thus, obviously in absence of any such facility available within 2 District, other business rivals would get obvious disadvantage of the situation. Therefore, certain local political and certain unscrupulous persons were raising undue and untenable objections before the Collector against grant of the NA filed under section 65B of the Code.
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8 It is significant to mention here that yet another Public Interest
Litigation being PIL No.182 of 2014 was filed before this Hon'ble Court, however, vide order dated 05.12.2015, this Hon'ble Court was pleased to reject the said petition wherein it is specifically observed that CBWTF is indeed needed within Kheda District looking to its proximity with the health care unit. The Hon'ble Court has recorded that grievance raised by the concerned petition is not tenable and has no substance. Thus, indirectly the Hon'ble Division Bench was pleased to observe that the technical objections raised by the petitioner in PIL No.182 of 2014 and other similarly situated person have no substance and on the contrary Gujarat Pollution Control Board has support the case of the present petitioner in above referred PIL. Copies of the order dated 05.02.2015 in PIL No.182 of 2014 as well as memo of PIL are annexed hereto and marked as Annexure VII to this reply. The above referred orders passed by this Hon'ble Court as well as documents produced herein above, it would become clear that all the concerned competent authorities including Gujarat Pollution Control Board has forwarded their opinions in favour of the present petition for establishment of the CBWTF.
It is to be noted that petitioner No.1 was party to said proceeding and father of petitioner no.3 was petitioner no.1 in the PIL. Thus, in view of the final order passed by Hon'ble Division Bench, even on ground of constructive resjudicata, resjudicata and Estoppal also caption petition is not sustainable that too on the grounds mention in the caption petition, as all such grounds were considered in detail and after examining many affidavits file by the all concerned, above referred PIL 182 of 2014 was dismissed.
9 It is matter of great shock and pain that though District Collector has no power and/or authority in view of the provisions contained in Code read with the Rules and in view of the prevailing policy of the State Government, vide communication dated 24.09.2015 the District Industrial Centre, KhedaNadiad was directed to give its opinion by District Kheda Nadiad has forwarded its positive opinion on 08.10.2015. A copy of the opinion dated 08.10.2015 is annexed hereto and marked as Annexure VIII to this reply. Thus, it is clear that now there is no option and/or reason available with the District Collector for not granting NA order under Section 65B of the Code. Therefore, then vide communication dated 07.01.2016, the answering respondents were informed by District Collector, Kheda that in view of the some communication issued by Ministry of Forest & Environment, application of the answering respondents kept pending. A copy of the above referred communication dated 07.01.2016 is annexed hereto and marked as Annexure IX to this reply.
10 It would not out of place to mention here that as per the provisions
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contained in the Code read with the Rules and in view of the prevailing policy of the State Government, Ministry of Forest and Environment has no say in the matter of the grant of the NA order under Section 65B. In facts of the present case respondent no.3 had granted its NOC for establishment. Therefore, District Collector, Kheda could not postpone final adjudication of the application of the petitioner on such non germen and unsustainable grounds. It is significant to mention here that as per the circular of the State Authority, even opinion of the Gujarat Pollution Control Board is not necessary for considering application of the NA under Section 65B of the Code. A copy of the circular dated 02.04.2006 is annexed hereto and marked as Annexure X to this reply. Therefore, the answering respondents had filed detailed representation on 20.01.2016 to the District Collector, Kheda and requested the District Collector to pass final order upon application filed by the petitioners under Section 65B of the Code.
It is significant to mention here that provisions contained under Section 65(B) of the Code the person who wants to utilize the land for bonafide industrial purpose, is not suppose to wait till the passing of the order under Section 65(B) of the Code and immediately after issuance of the notice as contemplated under Section 65(B) of the Code, industry can set to motion. However, the present industry i.e. unit of the CBWTF is under obligation to get permission from the respondent no.3, respondent no.3 would not give consent for operation without NA order. It is the policy of the respondent no.3 that after obtaining the consent of the establishment, concerned industry is under obligation to obtain NOC for operation, however, such NOC/consent of the operation would not grant and/or consider without NA order under Section 65(B) of the Code. Thus, in peculiar facts and circumstances of the present case the answering respondents had no other option but to get NA order under Section 65(B) of the Code before starting the production. Therefore, the petitioner had filed SCA No.3451 of 2016 and requested this Hon'ble Court to issue appropriate writ order or directions to respondents for grant of permission or for adjudication of the application dated 19.06.2015 filed under Section 65(B) of the Code. The above referred petition being SCA No.3451 of 2016 was disposed of vide order dated 13.04.2016 whereby District Collector was directed to take final decision upon application of the grant of the NA filed by the petitioner within one month. A copy of the order dated 13.04.2016 is annexed hereto and marked as Annexure XI to this reply.
11 It is submitted that establishment of CBWTF was extremely necessary, more particularly in view of the enactment of the Bio Medical Vest (Management & Handling) Rules, 1998 amended Rules, 1998 amended Rules, 2003. It would not out of place to mention here that in Kheda District as well as in surrounding District many reputed hospitals and small dispensary are in operation and in Kheda District as well as in Page 16 of 71 HC-NIC Page 16 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT the adjoining District of the Anand and Mahisagar no CBWTF industry is established. Therefore, it is clear that business rivals have instigated some unscrupulous person with the help of the local politician and illegal pressure is build up. Therefore, the application of the answering respondents dated 19.06.2015 was not considered for considerable long time. However, in view of the order passed by this Hon'ble Court now the respondent No.2 was under obligation to decide the application within one month and though opinion from the concerned authorities were on record and though the NOC for establishment was on record granted by the respondent No.3 just to justify final predetermine adjudication, lowers authorities were again directed to forward their opinion by district authorities were again directed to forward their opinion by district Collector. In the second round, concerned authorities have conveniently charged their stand and opinions were forwarded by the concerned lower authorities by challenging their stand conveniently. Copies of the relevant opinions forwarded by the concerned authorities are annexed hereto and marked as Annexure XII to this reply. Bare perusal of the above referred documents it would become clear that either the authorities have changed their opinion or the opinion are forwarded without there being any final decision on the subject matter. As stated above on 05.05.2016, even Collector Shri K K Nerala had directed the present respondent and other persons to remain present in personal hearing on 09.05.2016. A copy of the communication dated 05.05.2016 is annexed hereto and marked as Annexure XIII to this reply. It is submitted that on or before 09.05.2016 the concerned Collector Shri Nerala had transferred and hence, he was not present on 09.05.2016 when the respondents and other persons visited the office of the Collector for hearing. A Rojkam is prepared wherein statement of the respondent No.4 and his wife is recorded. A copy of the said Rojkam is annexed hereto and marked as Annexure IXV to this reply.
12 It is submitted that on 09.05.2016, the answering respondents had also submitted the details which were asked for by the Collector in its communication dated 05.05.2016. A copy of the submissions dated 09.05.2016 is annexed hereto and marked as Annexure XV to this reply. It is to be noted here that the respondent No.5 is directed to remain present on 10.05.2016, however, on 10.05.2016 present Collector, Shri Arya had already taken over the charge and ultimately on 16.05/2016 order is passed absolutely on non germen and unsustainable ground. A copy of the order dated 16.05.2016 is annexed hereto and marked as Annexure XVI to this reply.
The above referred order dated 16.05.2016 was passed obviously in view of local pressure of the local leaders and other scrupulous persons and the said order was not legal and therefore on various grounds the answering respondents had challenged the said order before this Hon'ble Court in Special Civil Application No.9637 of 2016. However, in view of alternative remedy available to challenge the said order before the SSRD, this Hon'ble Page 17 of 71 HC-NIC Page 17 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT Court was not inclined to exercise extraordinary jurisdiction. However, the Hon'ble Court was pleased to direct the revisional authority to decide revision within four months considering the peculiar facts and circumstances of the present case. Copy of the order dated 21.06.2016 passed by this Hon'ble Court in Special Civil Application No.9637 of 2016 is annexed hereto and marked as Annexure XVII to this reply.
13 In view of the above, the petitioner had filed detailed revision application before the respondent No.1 - Revisional Authority and placed on record all the relevant documents. Copies of memo of revision as well as list of document produced before the authority are annexed hereto and marked as Annexure - XVIII to this reply.
14 As can be seen from the record, the order dated 16.05.2016 was passed on nongermane and limited ground. The Answering respondents has also paid the amount of charge of the Co. Op. Bank as well as Bank of Baroda for the purpose of cleaning the record. Copies of documents showing payment of above referred amount of Charotar Cooperative Bank as well as Bank of Baroda by the Answering Respondent are annexed hereto and marked as Annexure XIX to this reply. Thus after considering the totality of the fact that the fact that the competent authority i.e. GPCB has already granted permission, the respondent No.1 was pleased to pass the impugned order dated 26.05.2017 which is just and proper. As can be seen from the record in view of the order dated 26.05.2017 consequential order of grant of N.A. is already placed before the District Collector dated 03.07.2017. Copy of the consequential order dated 03.07.2017 passed by the Collector is annexed hereto and marked as Annexure - XX to this reply. It would not be out of place to mention that on 03.07.2017, the respondent No.3 has granted consent to operate in favour of Answering Respondent. Copy of the consent of operation by GPCB on 03.07.2017 is annexed hereto and marked as Annexure - XXI to this reply. However, as this Hon'ble Court has granted adinterim relief on 03.07.2017, the Answering Respondents have restrained themselves for starting industry at site.
15 It is submitted that in view of above, it would become clear that proper and genuine industry of the Answering Respondent objected by unscrupulous persons for obvious reasons. All parameters of the Gujarat Pollution Control Board are fulfilled by the Answering Respondent. The record further suggests that so far as petitioner No.1 is concerned, even on the ground of principle of res judicata and estoppel the petitioner No.1 is not entitled to raise present grievance as petitioner No.1 was party respondent in both above referred public interest litigations. Even on the face of the order passed by the Hon'ble Division Bench dated 05.02.2015 it is not open for the petitioners to challenge the impugned order that too on the ground raised in memo of petition. Thus, on this ground also captioned petition is required to be dismissed with appropriate costs. It is Page 18 of 71 HC-NIC Page 18 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT submitted that the totality of the fact would suggest that for obvious reasons and in view of pressure tactic of vested interest persons the Answering Respondent is not in a position to start legal, proper genuine industry upon the land which is purchased for the purpose.
16 It is submitted that it is clear from the record the competent authority i.e. GPCBG has considered all the aspects while granting the consent for establishment as well as consent for operation / consent to operate. It would not be out of place to mention that no pollution would generate by the industry in question and on the contrary the hazardous biomedical waste would be processed in scientific manner which would ultimately be in the interest of public at large. As per the information available with the Answering Respondent many such processing house are in operation in State of Gujarat and even in the village question with respect to one C.G. General Hospital such small plant is in existence. Of Course, such plant is not as hightech as the plant of Answering Respondent, however, with respect to said biomedical waste processing house no objections whatsoever are raised by the petitioner. Thus, it is clear case of abuse of process of law with in genuine intention. However, such abuse is not permissible and this Hon'ble Court would not like to exercise extraordinary jurisdiction under Article 227 of the Constitution of India that too in the facts and circumstances of the present case. It would not be out of place to mention that in past petitioner no.1 had issued NOC. Copy of the NOC issued by petitioner No.1 Panchayat is annexed hereto and marked as Annexure XXII to this reply. However the interest of the rivals, now the petitioner No.1 has changed his stand for obvious reasons. Be it that may, under the provisions of law once the GPCB has considered all aspects and granted certificate for operation, the impugned order cannot be questioned that too on the ground which are raised in memo of petition. So far the provisions under the Code are concerned, the said grounds are not germane and as stated above, the GPCB has considered the case of the Answering Respondent absolutely in tune with the applicable laws and prevailing policy. Thus, the impugned order is just and proper in these facts of the case and therefore captioned petition is required to be dismissed at the outset.
17 It is submitted that in fact no harm and / or prejudice would cause to public at large including the residents of the village in the event of staring of the plant in question. The plant in question is absolutely automatic and would not generate any pollution whatsoever. The rational ideal of the proposed production with some short details along with the photos of the factory in question are annexed hereto and marked Annexure XXIII to this reply. Bare perusal of the above referred short details and photographs it would become clear that biomedical waste which would be collected by the industry would be put into incinerator and after the process after keeping the hit of about 1500 centigrade, the waste would converted into ash which would be used for production of fertilizer and the Page 19 of 71 HC-NIC Page 19 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT rest of the smoke would pass through or discharged through 100 ft height Chimni and the said smoke would also be there and therefore even the apprehensions of proposed pollution etc. are illfounded. Thus, in view of the above, an apprehension put forward by the petitioner is illfounded and the captioned petition is required to be dismissed."
13 In such circumstances referred to above, Mr. Chhaya, the learned counsel prays that there being no merit in this application, the same be rejected.
14 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the S.S.R.D. committed any error in passing the impugned order and whether the private respondents should be permitted to operate the BioMedical Waste Treatment Plant in accordance with the consent terms laid down in the consent order passed by the Gujarat Pollution Control Board.
15 Before I deal with the main issue as regards the potential health hazard likely to be caused on account of the operation of the Bio Medical Waste Treatment Plant, let me look into the certain orders passed by the authorities, and more particularly, the Public Interest Litigation, which came to be disposed of by this Court.
16 It appears that one Writ Petition (PIL) No.38 of 2014 was filed before this Court seeking appropriate directions upon the authority concerned to ensure that the public life and safety of the village:
Uttarsanda be protected and also for a writ of mandamus directing the private respondents to ensure that they do not carry out any commercial activity in the absence of the statutory permission under the law. On 20th February 2014, a Division Bench of this Court, to which I was a party, Page 20 of 71 HC-NIC Page 20 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT passed the following order:
"By this public interest litigation, the writpetitioner has prayed for direction upon the respondent no.1 to ensure that the public life, health and safety of the village Uttarsanda is to be protected and has also prayed for a mandamus directing the respondent no.1 to ensure that the respondent no.6 should not carry out any commercial activities in the absence of statutory permission under the law and for demolition of the illegal construction made on the subject land in violation of the Gujarat Panchayats Act.
Our attention has been drawn to the fact that during the pendency of this application, on 12th February 2014, the respondent no.1 has already passed order prohibiting the respondent no.2 not to do the alleged activity as their prayer having been refused.
Such being the position, the petitioner cannot have any further grievance. We, however, make it clear that we have not gone into the merit of the order dated 12th February 2014 passed by the respondent authority and disposal of this application will not stand in the way of a private respondent from challenging the order before appropriate forum in accordance with law, including the review before the same forum, if permissible under the law.
The application stands disposed of.
The two orders passed by the Collector on 12th February 2014 filed by the learned advocate for the petitioner be kept with the record."
17 Thereafter, on 2nd July 2014, an order in the Writ Petition (PIL) No.182 of 2014, to which I was a party, was passed as under:
"In this public interest litigation, the actual location of a Common Bio Medical Waste Treatment Facility is the subject matter of dispute.
Indisputably, the Gujarat Pollution Control Board has permitted the respondent to proceed with the construction at a given spot and consent to establish such CBMWTF has been given but the consent to operate such unit has yet to be granted, and at this stage, this public interest litigation has been filed challenging the proposed site.
According to the petitioner, there are residential units within 300 meters of the proposed unit of the respondent. It appears that the GPCB gave Page 21 of 71 HC-NIC Page 21 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT consent on the basis that within 500 meters of the proposed unit there is no residential unit and such distance certificate was given by the local panchayat.
Our attention has been drawn to the fact that subsequently the said panchayat authority as well as the Chief District Health Officer of the panchayat have certified that one Shriji Society is situated within 300 meters of the proposed site. Our attention has also been drawn to the fact that according to the statement that has been recorded and reflected at page 173C, there is a Mother Care school, water works and a lake situated in the vicinity of the proposed site.
Such being the position, we direct the Gujarat Pollution Control Board to inspect the area again, for the purpose of giving report to this Court, on the following aspects :
1. Whether there exists any residential unit named Shriji Society or any other residential unit within the distance of 500 meters of the proposed site, and also to record the actual distance of such residential unit, if any such unit exists from the proposed unit;
2. Whether there is a lake in the vicinity and there exists a school named Mother Care school. If so, the actual distance from the proposed site.
Let such report be given within a fortnight from today.
Let the matter appear on 16th July 2014. Interim relief granted earlier be extended till then. "
18 Pursuant to the order passed by this Court referred to above, a visit report was filed before this Court, which reads as under:
"Place of visit: Hexa Clear Bio Medical Waste Management, plot No.791/792, B/h. Stadium, Near Nayna Papad Works, Uttarsanda, Ta. Nadiad, Di. Kheda.
Date of visit: 09/07/2014, time at 11:30 hours.
Reference : Telephonic message dated 08/07/2014 of the Head office, Gandhinagar.
Pursuant to order of the Hon'ble High Court dated 02/07/2014 in the writ petition PIL NO.182/2014, as per telephonic message of the head Page 22 of 71 HC-NIC Page 22 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT office, Gandhinagar dated 08/07/2014, the instructions were given to the Gujarat Pollution Control Board to carry out on the spot inspection of the place of Hexa Clear Bio Medical Waste Management, Uttarsanda, Ta. Nadiad, Di. Kheda, and to inquiry the distance of the said place in question from residential areas, school, pond, water works, etc. The undersigned officers of the Regional Office of Gujarat Pollution Control Board, Nadiad, had taken visit of the said place on 09/07/2014, the observations thereof are as under:
1 On measuring the distance between the boundaries of the said unit and that with the Shriji Society, it was 242 meter. At present there are around 20 houses in Shriji Society. In addition, nearby above unit there is agricultural land and similarly within the distance of around 100 to 200 meters there are residential house of farmers.
2 On measuring the distance from the said unit upto the boundary where the pond starts, it is found 502 meters.
3 From the said unit, on measuring the distance of water works, which is located near the cricket ground on Nadiad - Uttarsanda Road, it is found around 475 meter.
4 From the boundary of the said unit towards Mother care School, the distance upto the boundary of Mother care School is found around 530 meter."
19 Thereafter, on 5th February 2015, a Division Bench of this Court disposed of the Writ Petition (PIL) No.182 of 2014 in the following terms:
"1. The present writ petition in the nature of Public Interest Litigation is filed praying for the following reliefs.
A) Your Lordships may be pleased to issue a writ of Mandamus or writ in the nature of mandamus or any other appropriate writ, order and/or directions directing the respondent no.2 to ensure that the public life, health and safety of village Uttarsanda is protected forthwith.
B)Your lordships may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order and/or directions directing the respondent no.2 to ensure that the respondent no.6 shall not carry out any activities in Page 23 of 71 HC-NIC Page 23 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT absence of any statutory permissions under the laws and be further directed to demolish the illegal construction made on the subject land in violation of the Gujarat Panchayat Act.
(C)Your lordships may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order and/or directions directing respondent no.5 and 7 not give the consent to commence to respondent no.6.
(D)Your lordships may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order and/or directions directing respondent no.5 and 7 to ensure that the respondent no.6 is not given permission to commence, continue the process the BioMedical Waste in the village Uttarsand, looking to the public health and safety of the people of Uttarsanda.
(E) Your lordships may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order and/or directions directing respondent no.5 and 7 to ensure that the respondent no.6 is not given the consent to commence the unit of BioMedical waste in violation of the guidelines issued by CPCB and respondent no.5 to 7 more particularly not to erect the BioMedical Waste unit near the vicinity of the residential locality.
(F) pending hearing and final disposal of the present petition your lordships may be pleased to restrain the respondent no.6 from starting the BioMedical Waste processing unit on Survey no.1817 situated at Village Uttarsanda, District Kheda.
(G) An Exparte ad interim relief in terms of para 12 (F) may please be granted, looking to the interest of public at large.
(H) Pending admission, hearing and final disposal of this petition be pleased to direct the Respondent no.2 to submit the report why respondent no.2 has not stopped the respondent no.6 from making illegal construction and further pleased to direct the respondent no.2 to prepare a Panchnama and submit the report before this Hon'ble Court.
I) Your Lordships may be pleased to direct the respondent no.2 to initiate the demolition proceedings against the erring respondent no.6 as the activities on the subject land is against the law.
J) xxx xxx xxx
K) xxx xxx xxx
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2. We have learned counsel for the respective parties.
3. The Court (Coram : G.R.Udhwani, J) passed the following order on 2.6.2014.
Leave to amend the prayer clause is granted.
Considering the averments made in paragraph8(G) and paragraph 9, as also the health issues being involved, respondent No.6 is restrained from commencing the operations of its Common BioMedical Waste Treatment Facility (CBWTF) until the returnable date.
Notice returnable on 09.06.2014.
Direct service is permitted today.
4. During the course of hearing, our attention is drawn towards the affidavitinreply filed on behalf of respondent Nos.5 and 7. Paragraph 7 of the said affidavitinreply reads as under.
7. I say that the apprehension of the Petitioners that the operating of incinerators would result in emissions of gases hazardous to health and endanger the populace around the area of the CBWTF is premature as the CBWTF has yet not commenced operation and as is evident from the narration hereinabove clear and specific directions have been issued to the unit not to commence production till all parameters are satisfied. I say that therefore having given consent to establish the CBWTF on the basis of the application and contemporaneous record including distance certificate it appears that the residents have approached the Uttarsanda Gram Panchayat, which had earlier granted the certificate of distance and now an attempt is being made to thwart operation of a CBWTF which is needed within the Kheda District looking to its proximity with the Health Care Units and the generation of BioMedical Waste and therefore the apprehension voiced by the Petitioners with respect to the operating of the facility appear to be unjustified and the petition therefore deserves to be dismissed.
5. In view of the aforesaid factual position, we are of the considered opinion that since specific directions have been issued to the unit by the concerned authority not to commence production till all parameters are satisfied coupled with the fact that operation of a CBWTF is needed within the Kheda District looking to its proximity with the Health Care Units, there appears no substance in the grievance raised by the petitioners in the present writ petition. Under the circumstances, this writ petition fails and the same is dismissed. Notice is discharged. There shall be no order as to Page 25 of 71 HC-NIC Page 25 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT costs."
20 Let me now look into the order passed by the Collector dated 3rd March 2017 rejecting the application for grant of the N.A. permission. The order reads as under:
"For the land in maujeUttarsanda, Ta. Nadiad, bearing Block No.1817, Account holding number 791 admeasuring He. 06777, the application under Section 65(B) of the Land Revenue Code, of the applicant seeking non agriculture permission for Bonafide intention of industrial use, was filed by the Collector, Kheda vide letter No.JMN/1/NA/SR/17/16 13/Vashi/dated 16052016.
For the said case, against the order of the Collector, the applicant had made an application before the Additional Secretary, Revenue Department (Dispute), Ahmedabad. In connection with the same, on tying the case the order no.BKHD/Kheda/3/16, dated 16/09/2016 of the Collector was cancelled and the case was remanded to hear the applicant again and take decision afresh, therefore this case has arisen.
On registering the said remand case to appeal register, its first hearing was kept on 17/10/2016, the information thereof was conveyed to the parties in writing and they were instructed to remain present during hearing at this office in person and to comply with the following point Nos.1 to 7.
1 Pursuant to letter No.Health/Techni/opinion/Vashi/20/166, dated 27/04/2016 of the District Health officer, KhedaNadiad, the distance should be according to that mentioned in the Circular dated 12/04/2006 of the Gujarat Pollution Control Board. Since the people are residing in the nearby areas of the said land in question, and in the radius of around 300 meters are there are residential houses of people in Shriji Society. Regarding the same, the objection has been raised against use of the said land for industrial purpose.
2 Pursuant to the visit report produced vide the letter dated 29/04/2016 of the Regional Office of Gujarat Pollution Control Board, Nadiad, the distance from the said unit to the boundary of Shriji Society is around 24 meters and in the distance of 100 to 200 meters there are residential houses of farmers. Further, the distance of water works is around 475 meters. The said entire residential and waters works buildings are within the distance of 508 meters.
3 There is encumbrance of people's bank, Uttarsanda in the land in
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question, the evidences of removal of the same may be produced.
4 During earlier hearing in person, the certificate dated 07/05/2016 of the Uttarsanda people's Co. Op. Bank Ltd., Uttarsanda has been produced. But, since it is not being clarified as to for which survey number the said certificate is, it is requested to make clarification thereof with the requisite proofs and evidences.
5 The hypothecation of Rs.63540/ of Charotar Cooperative Sugar Industries Ltd., Palaj, Ta. Petlad has been registered. Since no any proofs and evidences regarding its removal have been produced, it is requested to produce them.
6 The hypothecation of Rs.3,99,000/ of the Bank of Baroda, Nadiad Branch has been registered, the evidences of its removal may be produced.
7 The consent of the occupants of the nearby lands of the said land in question, bearing block numbers 1816, 1817 paiki and 1819 paiki are to be obtained for the path to enter the said land in question.
The applicant has remained present during hearing on 17/10/2016. Further, as mentioned from this office, the clarification regarding the points nos. 1 to 7 has been done as under.
(1) Pursuant to section - 65(B) for the bonafide use for establishment of industrial unit, the production must be begun.
(2) Since the said bio medical waste unit is a polluting unit, it is necessary to obtain the consent for operation from the Gujarat Pollution Control Board. Prior to giving consent under this rule, NA order must have been passed. Since the said unit is a pollutic unit, pursuant to the GPCB rules, the application has been made on 04/07/2013 before GPCB seeking NOC.
(3) The entire condition has been considered by the Hon'ble High Court of Gujarat and the order has been passed.
(4) There is no objection to anyone regarding the path for moving through the land in question, there is open path.
(5) There is any pledge pending regarding the said land.
(6) Earlier on 29/10/2014 the positive opinion has been given by the District Health Officer.
(7) The Gujarat Pollution Control Board has passed the order vide No.CTE/57151 dated 18/09/2013.Page 27 of 71
HC-NIC Page 27 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT The applicant has made oral and written submission. Thereafter, as it appeared necessary to get the opinions of other office, regarding the same the Mamlatdar, Nadiad (Rural) has opined for moving through the said land that the land in question is located adjancent to the pakka road the Uttarsanda to Nadiad civil hospital. The movement in the said land can bedone from pakka asphalt road towards western side of the said land. Further, one can enter through the cart road located on joint borders of block nos. 1815 and 1816. The Gujarat Pollution Control Board, Gandhinagar have vide the letter dated 28/12/2016, instructed to grant non agricultural permission upon complying with the conditions as mentioned in the circular dated 02/04/2006 of GPCB. As stated by the District Health Officer, Nadiad in his letter dated 16/01/2017, on taking visit of the said place by the health team and on examining there in the radius of 500 meters nearby the said land in question, since the people are residing in scattered residences in the nearby farms, and within the radius of around 300 meter, the houses of Shriji Society appeared. Since the Bio Medical Waste and Common Bio Medical Waste are the matters concerning the Gujarat Pollution control Board, pursuant tot he condition provided in the circular of the Gujarat Pollution Control Board, Gandhinagar, the industrial place should be located at a minimum distance of 500 meters from the residential area and school and college, etc. On considering the said fact, the report has been made that there may be objection in establishment of the biomedical waste unit, because of hazard to the public health.
Thus, on considering written and oral submissions of the applicant, opinions produced by other offices, etc. the applicant was instructed vide this office letter dated 10/10/2016 to make clarification of the point nos.1 to 7. But, the applicant has not made satisfactory clarification of the above point nos.1 to 6. Further, in this connection the District Health Officer has raised objection against grading non agricultural permission in the said land. The conditions of the circular dated 12/04/2006 of the Gujarat Pollution Control Board, Gandhinagar are not being complied with. The encumbrances of different banks have been noted down in the village extracts 7/12, which have not been removed. Vide the letter No.95 to 99/2016, dated 07/12/2016 of the Sarpanch of Uttarsanda, and the villagers have declared their objections. On considering the said entire facts, for the land maujeUttarsanda, Ta. Nadiad, bearing Block No.1817, Account holding number 791 admeasuring He. 06777, the application under Section 65(B) of the Land Revenue Code, seeking non agricultural permission for bonafide industrial use is dismissed and as the order dated 16/05/2016 of this office is true and just, therefore it is appropriate to continue the said order.
Thus, in this case the following order is hereby passed.
ORDER
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Pursuant to the order No.MVV/BKHP/KHD/3/201, dated 16/09/2016 of the Additional Secretary, Revenue Department (dispute), Ahmedabad, on taking the decision afresh and scrutinizing the matter, the application of the applicant is hereby dismissed and this office order No.JMN1/NA/SR No.17/1617/Vashi/2782/16, dated 16/05/2016 is hereby confirmed."
21 Let me now look into the impugned order passed by the S.S.R.D. dated 26th May 2017 allowing the revision application filed by the private respondents. The order reads as under:
"The fact of this case is such that for the land in maujeUttarsanda, Ta. Nadiad, bearing Block NO.1817, Account holding number 791 admeasuring He. 06777, the application under Section 65(B) of the Land Revenue Code, of the applicant seeking non agriculture permission for honest intention of industrial use, was filed by the Collector, Kheda vide letter no.JMN/NA/SR/17/1613/Vashi/ dated 16052016. for the said case, against the order of the Collector, the applicant had made an application before this Court. In connection with the same, on trying the case the order No.BKHD/Kheda/3/16, dated 16/09/2016 of the Collector was cancelled and the case was remanded to hear the applicant again and take decision afresh. Pursuant to the same, the Collector passed his order dated 27/02/2017, rejecting the said application of the applicant for the following reasons. Being aggrieved of the same, the present applicant has filed the following revision application.
The reasons of dismissing the application by the Collector, Kheda: The point nos. 1 to 6 have not been fully complied with. The Chief District Officer has shown objection against granting non agricultural permission in the said land. The conditions of the circular dated 12/04/2006 of the Gujarat Pollution Control Board, Gandhinagar have not been complied with. The encumbrances of the bank in the village extract copy 7/12 of the said land have not been removed. The authorities of Uttarsanda Gram Panchayat and villagers have declared their objections.
Since the revision application of the applicant has been filed within the time limit, the same was registered in this office vide above mentioned number. Thereafter, fresh hearing of the said case was kept on 06/04/2017, wherein the applicant and his ld. Advocate were heard. Written representation may be produced within 15 days for further representations. Since no any other submission apart from the same is to be done, the case has been carried upto the stage of judgment.
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The applicant has submitted in the said revision application that for the said case since the order passed by the Collector, Kheda is against the established acts and the facts, the same is liable to be cancelled. For the said case, regarding 7 points raised by the collector with reference to NA permission of the said land, the explanation in details has been done before the Additional Secretary, Ahmedabad and upon considering the said fact, Ld. Additional Secretary, Ahmedabad allowed the said revision application, cancelled the order passed by the Collector dated 16/05/2016 and remanded the case of the said revision application. In the said case, regarding the opinion given by the District Health Officer, KhedaNadiad, the orders passed by the Hon'ble High Court in the said case have been cited. Further, the permission order passed by the Gujarat Pollution Control Board and with reference to the letter No.JMN1/Non agriculture/Vashi/884/16, dated 18/02/2016 written to the Collector, Kheda, vide their letter No.Gujarat Po.Board/Nadiad/ID/41756 dated 29/04/2016, given explanations. In connection with the said case, there are 4 to 5 houses of farmers located at a distance of about 100 and 200 meters from the suit land and the distance of water works is around 475 meters. In connection with the said fact, the Collector took visit in person and made examination regarding the matter. Further, in connection with the said matter, after the Gujarat Pollution Control Board did requisite inquiry, granted unit permission. Further, regarding the said fact, in the case tried before the Hon'ble High Court of Gujarat, on the basis of the facts produced by the Gujarat Pollution Control Board, the said has been decided by the Hon'ble High Court in their order. Therefore, the said point has not been taken into consideration. Uttarsanda Gram Panchayat has vide No.44 dated 16/05/2013 issued the certificate that Hexaline Biomedical Waste Management is located at a distance of 500 meter from village Uttarsanda. The certificate of No.43, dated 16/05/2013 has been issued stating that if Hexaline Biomedical Waste is functioning, then Uttarsanda Gram Panchayat does not have any objection. The District Industrial Centre, Nadiad has vide their letter dated 08/10/2012 given opinion that Hexaline Bio Medical Waste is falling into the definition of the industrial unit. Pursuant to the report dated 30/01/2014 of the Chief District Health Officer, during his visit there did not appear any residential house within the radius of 500 meter. In this connection, the village of Uttarsanda have filed the Writ Petition No.182/2014 before the Hon'ble High Court of Gujarat. In the said petition, the Hon'ble Court has vide their order dated 05/02/2015 dismissed the Writ Petition of the petitioners, wherein the Hon'ble High Court has passed the order that "till all parameters are satisfied coupled with the fact that operation of a CBWTF is needed within the Kheda District looking to its proximity with the Health Care Units, there appears no substance in the grievance raised by the petitioners in the present writ petition. Under the circumstances, this writ petition fails and the same is dismissed. Notice is discharged. There shall be no order as to costs."Page 30 of 71
HC-NIC Page 30 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT The Hon'ble High Court dismissed the arguments of the petitioner and indicated that there is a need of joint bio disposal management in the district Kheda. The encumbrances on the land have been settled, the entry of removal of the said encumbrances have been approved vide numbers 3225, 7205, 3206, 6325. The applicant has during his projtect, time by time made an investment of around three crores. He has executed MOU during Vibrant Gujarat Protect with the Government of Gujarat. Through the said project, around 100150 people may get an employment. Further, in the said area, around 5 to 6 tons of bio medical waste is being created, and 30 vans shall be kept for its collection. There are no bio waste collection centers in Kheda, Mahisagar, Nadiad and Anand districts. Presently, the bio medical waste of these four districts is being collected from Godhara and Gandhinagar, which creates infections and risks during their transportation. Since the distance between disposal plant and the collection centre is increased, its functioning is costlier. Because of their such unit, there may not be any hazard to the human life, on the other hand the Swachchh Bharat Mission shall be accomplished.
On considering the revision application, submission of the applicant, the impugned order of the Collector, Kheda, the order dated 05/02/2015 passed by the Hon'ble High Court of Gujarat in the writ petition No.182/2014, etc, it appears that, (1) The Hon'ble High Court has in the writ petition No.182/2014, vide their order dated 05/02/2015 dismissed the writ petition of the petitioners. The Hon'ble High Court has dismissed the arguments of the petitioners and indicated that there is a requirement of the bio medical waste disposal management in the district Kheda.
(2) The encumbrances on the land have been settled, the entry of removal of the said encumbrances have been approved vide numbers 3225, 705, 3206, 6325.
(3) The applicant has during his project, made an investment of around three cores. He has executed MOU during Vibrant Gujarat Project with the Government of Gujarat.
(4) Through the said project, around 100150 people may get an employment.
(5) In the said area, from around 300 hospitals, around 5 to 6 tons of bio medical waste is being created, and 2030 collection vans shall be kept.
(6) There are no bio waste collection centres in Kheda, Mahisagar, Nadiad and Anand districts. Presently, the bio medical waste of these our districts is being collected from Godhara and Gadhinagar, which creates infections and risks during their transporation. Since the distance between disposal Page 31 of 71 HC-NIC Page 31 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT plant and the collection centre is increased, its functioning is costlier.
(7) Pursuant to the report of the Gujarat Pollution Control Board vide their letter No.GPCB/PI/Nadiad/ID/41576/154, dated 27/04/2015, the distance of the pond from the said unit appeared to be around 502 meters. The distance of water works is around 475 meters and the distance of mother care school appeared to be of 530 meters. Thus, such distance appears to be in consonance with the guidelines of the Gujarat Pollution Control Board.
(8) As stated by the Uttarsanda Gram Panchayat in their certificate vide No.44, the unit hexaclearn Bio Medical Waste is located at a distance of 500 meters from village Uttarsanda. Further, vide letter no. 33 of Uttarsanda Gram Panchayat, the said unit is working for bio medical waste management, wherein they do not have any objection.
(9) The Mamlatdar has vide their order dated 30/07/2015 and 27/04/2016, given opinion for non agriculture purpose for the suit land involved in the Hexaclear Bio Medical Waste Management. Similarly, vide their letter the Dy. Collector has given opinion to convert the land into non agricultural purpose in order to institute the factory of the Bio Medical Waste namley Hexaclearn Biomedical Waste Management.
(10) Pursuant to the report dated 30/01/2014 of the District Health Officer, Kheda as per his visit at the spot, there did not appear any residential place within the radius of 500 meters.
(11) Pursuant to the letter dated 19/01/2017 of the Gujarat Pollution Control Board, the said proposed unit has been vide the letter no.GPCB/BMWKheda555162131, given the approval upon the stage of consent to establish till date 30/07/2018.
(12) They have given undertaking that due to their unit, there may not be any hazard to the human lives.
(13) The applicant has declared through affidavit dated 24/05/2017 before the Notary that the applicant shall comply with the rules and regulations of the Gujarat Pollution Control Board and the Government of Gujarat. If there arises any objection of dispute regarding pollution, the responsibility to dispose it off shall of them only. If there is no solution thereof, and the objections have been kept alive, then if the Gujarat Pollution Control Board passes the order directing to shut down the factory pursuant to provision of the Environment law, the same shall bound the applicant. No any act shall be done so that due to functioning of the said factory, public peace and tranquility may be on risk.
(14) This project shall be proved helpful in accomplishing the Swachchh
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Bharat Mission of the Hon'ble Prime Minister.
On considering the above facts, it appears necessary to intervene the impugned order of the Collector, Kheda. Therefore, in this case the following order is hereby passed.
ORDER The revision application produced by the applicant is hereby allowed. The order of the Collector, Kheda vide No.JMN/1/Uttarsanda/Vashi/1110 to 1121/17, dated 27/02/2017 is hereby rejected. On considering the points as mentioned above, the compliance made by the applicant, the order of the Hon'ble High Court of Gujarat, and the affidavit produced here, regarding the application of the applicant seeking permission of non agriculture use of the land, in the public interest the order is hereby passed directing the Collector to grant permission under Section 65(B) of the L.R. Code."
22 Thus, the plain reading of the impugned order passed by the S.S.R.D. would reveal that the S.S.R.D. took into consideration all the relevant aspects of the matter, more particularly, the importance of Biomedical Waste Process Unit and the need in the area, and thereafter, allowed the revision application of the private respondents.
23 Let me now look into the order of consent and authorisation passed by the Gujarat Pollution Control Board dated 21st September 2015. The same is as under:
"CONSENT AND AUTHORISATION:
(Under the provisions / rules of the aforesaid environmental acts) To, M/s. Samvedna BMW Incinerator, Plot No.208/3, Village: Moraj, Tal: Tarapur, Dist: Anand388180.
1 Consent Order No.AWH72465 Date of Issue: 12/08/2015.Page 33 of 71
HC-NIC Page 33 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT 2 The consents shall be valid up to 02/08/2020 for use of outlet for the discharge of trade effluent and emission due to operation of common Biomedical waste treatment facility of the following items / products:
Sr. Products Quantity
No.
1 Incineration of Bio Medical Waste (BMW) 100 KG/hrs
2 Disinfection of BMW Plastic & Sharp 50 KG/Hrs
SPECIFIC CONDITIONS:
1 Applicant shall comply with conditions of given in CTE dated
08/05/2011.
2 Applicant shall comply with Bio Medical Waste (Management &
Handling) Rules2000.
3.0 CONDITIONS UNDER THE WATER ACT:
3.1 The quantity of the trade effluent shall be 1.500 KLPD.
3.2 The quantity of domestic sewage effluent from the factory shall not
exceed 0.500 KLPD.
3.2.1 Sewage shall be disposed of through septic / soak pit system or it shall be treated separately to conform to the following standards.
Parameter Permissible Limit
BOD (5 days at 200 C) Less than 20 mg/l
Suspended Solids Less than 30 mg/l
Residual Chlorine Minimum 0.5 ppm
4.0 CONDITIONS UNDER THE AIR ACT:
4.1 The following shall be used as fuel in boiler / furnace heater /
Kiln / D.G. Set respectively.
Sr. Fuel Quantity
No.
1 HSD (Incineration) 30 Lit/Hr
2 Diesel (D.G. Sets) 05 Lit/Hr
4.2 The applicant shall install & operate air pollution control system in
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order to achieve norms prescribed below 4.3.
4.3 The flue emission through stack attached to boiler / furnace /
heater shall conform to the following standards:
Stack Stack Stack APCM Parameter Permissible
No. attached to height Limit
in
Meter
1 Incinerator 30 Cyclone SO2 40 mg/NM3
Scrubber & NOx 25 mg/NM3
Venturi HCL 20 mg/NM3
Scrubber Chlorine 09 mg/NM3
Ammonia 175 mg/NM3
H2S 45 mg/NM3
Mercaptan 0.5 (By Volume)
CS2 180 mg/NM3
CO 150 mg/NM3
Hydrocarbon 45 mg/NM3
2 D.G. Sets 11 - Particular 150 mg/NM3
Matter 100 ppm
SO2 50 ppm
NO2
D.G. Set standards:
The flue gas emission through stack attached to D.G. Set shall conform to the following standards:
a) The minimum height of stack to be provided with each of the generator set shall be H=h + 0.2 (KVA) ½ , where H= Total stack height in meter, h = height of the building in meters where or by the side of which the generator set is installed.
b) Noise from DG set shall be controlled by providing an acoustic enclosure or by treating the room acoustically, at the users end.
c) The acoustic enclosure or acoustic treatment of the room shall be designed for minimum 25 dB (A) insertion loss or for meeting the ambient noise standards, whichever is on the higher side. (if the actual ambient noise is on the higher side, it may not be possible to check the performance of the acoustic enclosure / acoustic treatment. Under such circumstances the performance may be checked for noise reduction up to actual ambient notice level, preferably, in the night time). The measurement for insertion loss may be done at different points at 0.5 m from the acoustic enclosure / room, and the averaged.Page 35 of 71
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d) The D.G. Set shall be provided with proper exhaust muffler with insertion loss of minimum 25 dB (A).
e) All efforts shall be made to bring down the noise level due to the D.G. Set, outside the premises, within the ambient noise requirements by proper sitting and control measures.
f) Installation of a D.G. Set must be strictly in compliance with the recommendation of the D.G. Set manufacturer.
g) A proper routine and preventive maintenance procedure for the D.G. Set should be set and followed in consultation with the DG Set manufacture which would help prevent noise levels of the DG Set from deteriorating with use.
h) All D.Gs installed will be with acoustic enclosures. Antivibration mountings will be inserted between the base frame and enclosure floor of DG sets to prevent from noise pollution. I DG sets will be installed with proper acoustic measures sound calculation shall be shared once the make & vendor gets finalized.
i) All D.G.s smoke / emissions extract will be take up to minimum height 30 meters / Stack height will be provided as per CPCB norms & same shall be complied & certified with CPCB norms at the time of installation through D.G. Vendor.
4. 4 There shall be no process emission from the manufacturing process and other ancillary industrial operations.
4.5 The Stack monitoring facilities like port hole, platform/ladder etc., shall be provided with stacks/vents chimney in order to facilitate sampling of gases being emitted into the atmosphere.
4.6 Ambient air quality within the premises of the industry shall conform to the following standards:
PARAMETERS PERMISSIBLE LIMIT
Annual 24 Hrs Average
Particulate Matters - 10 (PM10) 60 Microgram/M3 100 Microgram/M3 Particulate Matter - 2.5 (PM 25) 40 Microgram/M3 60 Microgram/M3 SO2 50 Microgram/M3 80 Microgram/M3 NOx 40 Microgram/M3 80 Microgram/M3 Page 36 of 71 HC-NIC Page 36 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT • Annual arithmetic mean of minimum 104 measurements in a year at a particular site taken twice a week 24 hourly at uniform intervals.
• 24 hourly or 08 hourly or 01 hourly monitored values, as applicable, shall be complied with 98% of the time in a year. 2% of the time, they may exceed the limits but not on two consecutive days of monitoring.
4.7 The applicant shall operate industrial plant} air pollution control equipment very efficiently and continuously so that the gaseous emission always conforms to the standards specified in condition no. 4. 3 and 4. 6 as above 3 4.8 The consent to operate the industrial plant shall lapse if at any time the parameters of the gaseous emission are not within the tolerance limits specified in the condition no. 4. 3, and 4 .6 as above.
4. 9 The applicant shall provide portholes ladder platform etc at chimney(s) for monitoring the air emissions and the same shall be open for inspection to/and for use of Board's staff The chimney(s) vents attached to various sources of emission shall be designed by numbers such as 51, 82, etc. and these shall be painted /displayed to facilitate identification.
4.10 The industry shall take adequate measures for control of noise levels from its own sources within the premises so as to maintain ambient air quality standards in respect of noise to less than 75 dB(a) during day time and 70 dB (A) during night time. Daytime is reckoned in between 6 am. and 10 pm. and nighttime is reckoned between 10 pm. and 6 am.
4.11 in case of change of ownership/management the name and address of the new owners/partners/directors/proprietor should be immediately be intimated to the Board.
5. Authorization for the [Management, Handling & Transboundry Movement of Hazardous Waste] Rules2008. Form2 (See rule 5 (4) for grant of Authorization for occupier under handling Hazardous Waste.
5.1 M/s.Samvedna BMW Incinerator is hereby granted an authorization to operate facility for following hazardous wastes on the premises situated at Plot No: 208/3. Village: Mora], Tal: Tarapur, Dist:
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Sr. Waste Quantity Schedule Facility
No.
1 Ash From Incineration 36 MT/ Year I36.2 Collection, storage,
of Hazardous Waste, Transportation and
flue gas cleaning disposal to TSDF.
residue
2 Discarded containers / 0.020 MT/year I33.2 Collection, storage,
Barrels / Liners / used transportation and
for Hazardous wastes/ disposal by selling to
Chemicals Decontamination
facility only.
3 Chemical sludge from 06 MT / Year I34.3 Collection, storage,
waste water treatment Transportation and
disposal to TSDF.
5.2 The authorization is granted to operate a facility for collection, storage. within the factory premises and treatment, transportation and ultimate disposal of Hazardous wastes as per Haz. Waste (Management. Handling & Transboundry Movement] Rules 2008.
5.3 The authorization shall be in force for a period of five years (i.e. upto 02/08/2020).
5.4 TERMS AND CONDITIONS OF AUTHORISATION:
5.4.1 The applicant shall comply with the provisions of the Environment (Protection) Act 1986 and the rules made there under. 5.4.2 The authorization shall be produced for inspection at the request of an officer authorized by the Gujarat Pollution Control Board. 5.4.3 The persons authorized shall not rent. lend, sell, and transfer of otherwise transport the. hazardous wastes without obtaining prior permission of the Gujarat Pollution Control Board. 5.4.4 Any unauthorized change in personnel, equipment or working conditions as mentioned in the authorization order by the persons authorized shall constitute a breach of this authorization. 5.4.5 It is the duty of the authorized person to take prior permission of the Gujarat Pollution Control Board to close down the facility.Page 38 of 71
HC-NIC Page 38 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT 5.4.6 An application for the renewal of an authorization shall be made as laid down in rule 5 (7) (ii).
5.4.7 Industry shall submit annual report within 15 days and sub squinty by 31st January every year.
6. GENERAL CONDITIONS:
6.1 Any change in personnel, equipment or working conditions as mentioned in the consents form/order should immediately be intimated to this Board.
6.2 The waste generator shall be totally responsible for collection, storage, transportation and ultimate disposal of the waste generated. 6.3 Records of waste generation, its management and annual return shall be submitted to Gujarat Pollution Control Board in Form 4 by 31 st January of every year.
6.4 In case of any accident, details of the same shall be submitted in Form 5 to Gujarat Pollution control Board. .
6.5 As per "Public Liability Insurance Act 91" company shall get insurance policy, if applicable.
6.6 Empty drums and containers of toxic and hazardous material shall be treated as per the guidelines published for "Management & Handling of discarded containers". Record of the same shall be maintained and forwarded to Gujarat Pollution Control Board regularly. 6.7 Unit shall take all concrete measures to show tangible results In waste generation reduction avoidance, reuse and recycle. Action taken in this regard shall be submitted within 03 months and also along with Form4.
6.8 Industry shall have to display the relevant information with regard to hazardous waste as indicated in the Hon. Supreme Court's order in W.P. No: 657 dated 14th October 2003."
24 The plain reading of the consent and authorisation order passed by the Gujarat Pollution Control Board would reveal that the G.P.C.B. has taken due care to ensure that the unit functions within the parameters laid down under the rules and regulations of 2008. The G.P.C.B. has taken all the precautions necessary for proper functioning of the unit, thereby taking care of the issue of pollution.Page 39 of 71
HC-NIC Page 39 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT 25 The Gujarat Pollution Control Board, while passing the above referred order of consent and authorisation, kept in mind one circular of the year 2006, which reads as under:
"Earlier it was made compulsory by the Government for the Taluka Development Officer, District Development Officer, District Collector, etc Revenue Officers to take opinion from the Gujarat Pollution Control Board, while granting permission to convert purpose of the agricultural land to be used for the non agricultural purpose. In connection with the same, prior to converting the purpose of the land into non agricultural purpose, the applications were being sent by the Revenue Offices to get the opinion of the Board.
Vide the Circular No.BKHP/1098/UO/12/K, dated 30/10/1998 of the Government of Gujarat, whether the industries are creating pollution or not! Then also while granting permission for the use of land for non agricultural purpose and for industrial purpose, there was no need of the opinion from the Gujarat Pollution Control Board, therefore earlier instructions which were given for seek opinion are hereby canceled.
On considering the above details, now onwards since there is no need of opinion of the board for converting the said land into non agricultural tenure for the industrial purpose, on taking the Circular into consideration, while passing the orders of converting any land for the non agricultural purpose, the concerned authorities of the Revenue Department shall have to comply with the following conditions, make verification accordingly and also include the conditions without fail in the order of converting the land into non agricultural purpose.
1. The place of any industry may be located at a distance of minimum of 500 meter from the residential area, school, college, etc.
2. The place of such industrial area may be located at a distance of minimum of 500 meter from religious shrines, forest boundaries and sea shore.
3. The said industrial place should be under the line of control as decided by the Road and Building Department, from the Express highways, national highways, state highways and major roads of the district.
4. The said industrial place should be located at a distance from the line of control of the railway lines, as decided by the Indian Railways Department.
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5. The said industrial place must be located at a distance pf
minimum of 500 meters from the water resources like River, canals, ponds, reservoirs, etc.
6. The condition must be included in the orders granting permission for non agriculture for the said industrial areas, to have minimum green belt of five meter of breadth on all four sides of the said industrial place.
This circular is hereby published after taking permission of the President on the file no.NARJ1/06."
26 The Medical care is vital for our life and health, but the waste generated from medical activities represents a real problem of the living nature and human world. The improper management of the waste generated in health care facilities causes a direct health impact on the community, the health care workers and on the environment. Every day, relatively a large amount of potentially infectious and hazardous waste are generated in the health care hospitals and facilities around the world. The indiscriminate disposal of the BMW or hospital waste and exposure to such waste pose a serious threat to the environment and to human health that requires specific treatment and management prior to its final disposal.
● INTRODUCTION:
The biomedical waste management has recently emerged as an issue of major concern not only to the hospitals, nursing home authorities, but also to the environment. The biomedical wastes generated from the health care units depend upon a number of factors such as waste the management methods, type of health care units, occupancy of health care units, specialization of health care units, ratio of reusable items in use, availability of infrastructure and resources, etc. The proper management of biomedical waste has become a worldwide humanitarian topic today. The hazards of poor management of biomedical waste have aroused the concern world over, especially in the Page 41 of 71 HC-NIC Page 41 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT light of its farreaching effects on human, health and the environment. Now, it is a wellestablished fact that there are many adverse and harmful effects to the environment including the human beings which are caused by the "Hospital waste" generated during the patient care. The Hospital waste is a potential health hazard to the health care workers, public and flora and fauna of the area. The problems of the waste disposal in the hospitals and other healthcare institutions have become issues of increasing concern.
● DEFINITION:
According to the Biomedical Waste (Management and Handling) Rules, 1998 of India, biomedical waste means any waste which is generated during the diagnosis, treatment or immunization of the human beings or animals or in research activities pertaining thereto or in the production or testing of biologicals. The Government of India (Notification, 1998) specifies that the Hospital Waste Management is a part of the hospital hygiene and maintenance activities. This involves management of range of activities, which are mainly engineering functions, such as collection, transportation, operation or treatment of processing systems, and disposal of wastes. One of India's major achievements has been to change the attitudes of the operators of health care facilities to incorporate good HCW management practices in their daily operations and to purchase onsite waste management services from the private sector. (Bekir Onursal, 2003). The World Health Organization states that 85% of hospital wastes are actually non hazardous, whereas 10% are infectious and 5% are noninfectious, but they are included in hazardous wastes. About 15% to 35% of Hospital waste is regulated as infectious waste. This range is dependent on the total amount of the waste generated (Glenn and Garwal, 1999).
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● CLASSIFICATION OF BIOMEDICAL WASTE:
The World Health Organization (WHO) has classified medical waste into eight categories:
(1) General Waste (2) Pathological (3) Radioactive (4) Chemical (5) Infectious to potentially infectious waste (6) Sharps (7) Pharmaceuticals (8) Pressurized containers.
● SOURCES OF BIOMEDICAL WASTE:
Hospitals produce waste, which is increasing over the years in its amount and type. The hospital waste, in addition to the risk for patients and personnel who handle them also pose a threat to the public health and environment.
● MAJOR SOURCES:
(1) Govt. hospitals/private hospitals/nursing homes/ dispensaries. (2) Primary health centers.
(3) Medical colleges and research centers/paramedic services. (4) Veterinary colleges and animal research centers. (5) Blood banks/mortuaries/autopsy centers. (6) Biotechnology institutions.
(7)Production units.
● MINOR SOURCES:
(1) Physicians/ dentists' clinics (2) Animal houses/slaughter houses.
(3) Blood donation camps.
(4) Vaccination centers.
(5) Acupuncturists/psychiatric clinics/cosmetic piercing. (6) Funeral services.Page 43 of 71
HC-NIC Page 43 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT (7) Institutions for disabled persons ● PROBLEMS RELATING TO THE BIOMEDICAL WASTE:
A major issue related to current the BioMedical waste management in many hospitals is that the implementation of BioWaste regulation is unsatisfactory as some hospitals are disposing of waste in a haphazard, improper and indiscriminate manner. Lack of segregation practices, results in mixing of hospital wastes with general waste making the whole waste stream hazardous. Inappropriate segregation ultimately results in an incorrect method of waste disposal. Inadequate BioMedical waste management thus may lead to cause environmental pollution, unpleasant smell, growth and multiplication of vectors like insects, rodents and worms and may lead to the transmission of diseases like typhoid, cholera, hepatitis and AIDS through injuries from syringes and needles contaminated with human. Various communicable diseases, which spread through water, sweat, blood, body fluids and contaminated organs, are important to be prevented. The Bio Medical Waste scattered in and around the hospitals invites flies, insects, rodents, cats and dogs that are responsible for the spread of communication disease like plague and rabies. Rag pickers in the hospital, sorting out the garbage are at a risk of getting tetanus and HIV infections. The recycling of disposable syringes, needles, IV sets and other article like glass bottles without proper sterilization are responsible for Hepatitis, HIV, and other viral diseases. It becomes primary responsibility of Health administrators to manage hospital waste in most safe and ecofriendly manner. The problem of biomedical waste disposal in the hospitals and other healthcare establishments has become an issue of increasing concern, prompting hospital administration to seek new ways of scientific, safe and cost effective management of the waste, and keeping their personnel informed about the advances in this area. The need of Page 44 of 71 HC-NIC Page 44 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT proper hospital waste management system is of prime importance and is an essential component of quality assurance in hospitals.
● NEED OF BIOMEDICAL WASTE MANAGEMENT IN THE HOSPITALS:
The reasons due to which there is great need of management of hospitals waste are as under:
(1) Injuries from sharps leading to infection to all categories of hospital personnel and waste handler.
(2) Nosocomial infections in patients from poor infection control practices and poor waste management.
(3) Risk of infection outside hospital for waste handlers and scavengers and at time general public living in the vicinity of Page 45 of 71 HC-NIC Page 45 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT hospitals.
(4) Risk associated with hazardous chemicals, drugs to persons handling wastes at all levels.
(5) "Disposable" being repacked and sold by unscrupulous elements without even being washed.
(6) Drugs which have been disposed of, being repacked and sold off to unsuspecting buyers.
(7) Risk of air, water and soil pollution directly due to waste, or due to defective emissions and ash.
● BIOMEDICAL WASTE MANAGEMENT PROCESS:
There is a big network of Health Care Institutions in India. The hospital waste like body parts, organs, tissues, blood and body fluids along with soiled linen, cotton, bandage and plaster casts from infected and contaminated areas are very essential to be properly collected, segregated, stored, transported, treated and disposed of in safe manner to prevent nosocomial or hospital acquired infection.
(1) Waste collection (2) Segregation (3) Transportation and storage (4) Treatment & Disposal (5) Transport to final disposal site (6) Final disposal ● BIOMEDICAL WASTE TREATMENT AND DISPOSAL:
Health care waste is a heterogeneous mixture, which is very difficult to manage as such. But the problem can be simplified and its dimension reduced considerably if a proper management system is Page 46 of 71 HC-NIC Page 46 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT planned.
● INCINERATION TECHNOLOGY:
This is a high temperature thermal process employing combustion of the waste under controlled condition for converting them into inert material and gases. Incinerators can be oil fired or electrically powered or a combination thereof. Broadly, three types of incinerators are used for hospital waste: multiple hearth type, rotary kiln and controlled air types. All the types can have primary and secondary combustion chambers to ensure optimal combustion. These are refractory lined.
● NONINCINERATION TECHNOLOGY:
Nonincineration treatment includes four basic processes: thermal, chemical, irradiative, and biological. The majority of nonincineration technologies employ the thermal and chemical processes. The main purpose of the treatment technology is to decontaminate waste by destroying pathogens. Facilities should make certain that the technology could meet state criteria for disinfection.
● AUTOCLAVING:
(1) The autoclave operates on the principle of the standard pressure cooker.
(2) The process involves using steam at high temperatures. (3) The steam generated at high temperature penetrates waste material and kills all the micro organism.
(4) These are also of three types: Gravity type, Prevacuum type and Retort type.
In the first type (Gravity type), air is evacuated with the help of gravity alone. The system operates with temperature of 121 deg. C. and steam pressure of 15 psi. for 6090 minutes. Vacuum pumps are used to Page 47 of 71 HC-NIC Page 47 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT evacuate air from the Pre vacuum autoclave system so that the time cycle is reduced to 3060 minutes. It operates at about 132 deg. C. Retort type autoclaves are designed much higher steam temperature and pressure. Autoclave treatment has been recommended for microbiology and biotechnology waste, waste sharps, soiled and solid wastes. This technology renders certain categories (mentioned in the rules) of bio medical waste innocuous and unrecognizable so that the treated residue can be land filled.
● MICROWAVE IRRADIATION:
(1) The microwave is based on the principle of generation of high frequency waves.
(2) These waves cause the particles within the waste material to vibrate, generating heat.
(3) This heat generated from within kills all pathogens.
● CHEMICAL METHODS:
(1)1% hypochlorite solution can be used for chemical disinfection.
● PLASMA PYROLYSIS:
Plasma pyrolysis is a stateoftheart technology for safe disposal of medical waste. It is an environmentfriendly technology, which converts organic waste into commercially useful byproducts. The intense heat generated by the plasma enables it to dispose all types of waste including municipal solid waste, biomedical waste and hazardous waste in a safe and reliable manner. Medical waste is pyrolysed into CO, H2, and hydrocarbons when it comes in contact with the plasmaarc. These gases are burned and produce a high temperature (around 1200oC).
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● BIOMEDICAL WASTE MANAGEMENT RULES:
Safe disposal of biomedical waste is now a legal requirement in India. The Biomedical Waste Management and Handling) Rules, 1998 came into force on 1998. In accordance with these rules, it is the duty of every "occupier" i.e. a person who has the control over the institution or its premises, to take all steps to ensure that waste generated is handled without any adverse effect to human health and environment. It consists of six schedules. Schedule I, Schedule II, Schedule III, Schedule IV, Schedule V, Schedule VI.
Schedule 1. Categories of BioMedical Waste Option Treatment and Disposal Waste Category Cat. No.1 Incineration /deep burial Human Anatomical Waste (human tissues, organs, body parts) Cat. No.2 Incineration /deep burial Animal Waste Animal tissues, organs, Body parts carcasses, bleeding parts, fluid, blood and experimental animals used in research, waste generated by veterinary hospitals / colleges, discharge from hospitals, animal houses) Cat. No.3 Local autoclaving/ micro Microbiology and Biotechnology waste waving / incineration (wastes from laboratory cultures, stocks or specimens of micro organisms live or attenuated vaccines, human and animal cell culture used in research and infectious agents from research and industrial laboratories, wastes from production of biological, toxins, dishes and devices used for transfer of cultures) Cat. No.4 Disinfections (chemical Waste Sharps (needles, syringes, treatment / autoclaving / scalpels blades, glass etc. that may micro waving and cause puncture and cuts. This mutilation shredding includes both used and unused sharps) Cat. No.5 Incineration / destruction & Discarded Medicines and Cytotoxic drugs disposal in secured drugs (wastes comprising of outdated, landfills contaminated and discarded medicines) Page 49 of 71 HC-NIC Page 49 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT Cat. No.6 Incineration, autoclaving/ Solid Waste (Items contaminated with micro waving blood and body fluids including cotton, dressings, soiled plaster casts, line beddings, other material contaminated with blood) Cat. No.7 Disinfections by chemical Solid Waste (waste generated from treatment autoclaving / disposable items other than the waste micro waving& mutilation sharps such as tubing, catheters, shredding. intravenous sets etc.) Cat. No.8 Disinfections by chemical Liquid Waste (waste generated from treatment and discharge laboratory and washing, cleaning, into drain housekeeping and disinfecting activities) Cat. No.9 Disposal in municipal Incineration Ash (ash from landfill incineration of any biomedical waste) Cat. No.10 Chemical treatment and Chemical Waste (chemicals used in discharge into drain for production of biological, chemicals, liquid and secured landfill used in disinfect ion, as insecticides, for solids etc) Schedule II: Colour Coding and Type Of Container for Disposal of BioMedical Wastes Colour Type of Containers Waste Treatment Options as per Coading Category Schedule 1 Yellow Plastic bag Disinfected 1,2,3,6 Incineration/deep burial Red Disinfected 3,6,7 Autoclaving/Micro waving/ Container/Plastic bag Chemical Treatment Blue / Plastic bag/puncture 4,7 Autoclaving/Micro waving/ White proof container chemical treatment and Translucent destruction/ shredding Black Plastic bag 5,9,10 (Solid) Disposal in second landfill Schedule III: Waste description.
Sender's Name & Address ................................. Receiver's Name & Address Phone No ................... Phone No ....... ............... Telex No ......................Telex No ......................... Fax No ...................... Fax No ............................ Contact Person ......................................................... Contact Person .........
In case of emergency please contact Name & Address:............ Phone No..........
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Note: Label shall be nonwashable and prominently visible.
Schedule IV:
Label for Transport of BioMedical Waste Containers/Bags Day ............ Month ...................Year ............... Date of generation ............................................... Waste category No ........ Waste class............
ScheduleV: Standards for Treatment and Disposal Of BioMedical Wastes Standards For Incinerators.
ScheduleVI: Schedule for Waste Treatment Facilities like Incinerator/ Autoclave/ Microwave System. (Source The Bio Medical Waste (Management and Handling) Rules, 1998).
● Benefits of the Biomedical Waste Management: (1) Cleaner and healthier surroundings.
(2) Reduction in the incidence of hospital acquired and general infections.
(3) Reduction in the cost of infection control within the hospital. (4) Reduction in the possibility of disease and death due to reuse and repackaging of infectious disposables. (5) Low incidence of community and occupational health hazards. (6) Reduction in the cost of waste management and generation of revenue through appropriate treatment and disposal of waste. (7) Improved image of the health care establishment and increase the quality of life.
27 The Department of Environmental Science, M.D.S. University, Ajmer has recommended the following:
Page 51 of 71HC-NIC Page 51 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT "Recommendations:
(1) For the use of incinerator Training should be given to some number of persons from staff.
(2) Specific fund should be allocated for the use of incinerator.
(3) Every hospital should have special boxes to use as dustbin for bio medical waste.
(4) Biomedical waste should not be mixed with other waste of Municipal Corporation.
(5) Private hospitals should also be allowed to use incinerator, which is installed, in govt. hospital. For this purpose a specific fee can be charged from private hospitals.
(6) Special vehicle I.e. biomedical waste vehicle should be started to collect waste from private hospitals and private medical clinics and carry it up to the main incinerator.
(7) As provided by biomedical waste rules, the whole of the waste should be fragmented into colours due to their hazardous nature.
(8) Biomedical waste Management Board can be established in each District.
(9) Either judicial powers should be given to the management board or special court should be established in the matters of environment pollution for imposing fines and awarding damages etc. (10) Housekeeping staff wear protective devices such as gloves, face masks, gowned, while handling the waste.
(11) There is biomedical waste label on waste carry bags and waste carry trolley and also poster has put on the wall adjacent to the bins (waste) giving details about the type of waste that has to dispose in the Page 52 of 71 HC-NIC Page 52 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT baggage as per biomedical waste management rule. Carry bags also have the biohazard symbol on them."
28 According to the Department of Environmental Science, M.D.S. University, Ajmer, the medical wastes should be classified according to their source, typology and risk factors associated with their handling, storage and ultimate disposal. The segregation of waste at source is the key step and reduction, reuse and recycling should be considered in proper perspectives. We need to consider innovative and radical measures to clean up the distressing picture of lack of civic concern on the part of hospitals and slackness in government implementation of bare minimum of rules, as waste generation particularly biomedical waste imposes increasing direct and indirect costs on society. The challenge before us, therefore, is to scientifically manage growing quantities of biomedical waste that go beyond past practices.
29 The waste generated by the Hospitals, Nursing Homes, pathological labs etc., termed as the Biomedical Waste, is required to be disposed of in terms of the Rules framed by Government of India, in exercise of the powers conferred upon it by Sections 5, 8 and 25 of the Environment Protection Act, 1996, known as 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 (CBWTF).
30 In Vellor Citizens' Welfare Forum vs. Union of India and others [(1996) 5 SCC 647], the Supreme Court, inter alia, held that the onus to prove is on the actor or developer to show that his action is environmentally benign and the State must attempt "precautionary principles" to ensure that unless an activity is proved to be Page 53 of 71 HC-NIC Page 53 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT environmentally benign in real and practical terms, it has to be presumed to be environmentally harmful.
31 It is not in dispute that the biomedical waste is a hazardous waste which, if not properly disposed of, can prove to be highly injurious to the human life. That precisely appears to be the reason for its being included in the list of prohibited/negative list of industries. Admittedly, the incinerators are used in the facility meant for the disposal of the bio medical waste. This has also been noted in the guidelines issued by Central Pollution Control Board (CPCB) on the treatment of common biomedical waste and installation of incinerator is a mandatory requirement for such plants. Incineration is a controlled combustion from where waste is completely oxidized and harmful microorganisms present in it are destroyed/denatured under high temperature.
32 Let me now look into the revised guidelines for the common Bio Medical Waste Treatment and Disposal Plant facility, as laid down by the Central Pollution Control Board.
● CRITERIA FOR DEVELOPMENT OF A NEW COMMON BIO MEDICAL WASTE TREATMENT AND DISPOSAL FACILITY FOR A LOCALITY OR REGION.
33 Prior to allowing any new CBWTF, following criteria or steps may be followed:
(a) Prescribed authority under the BMWM Rules, 2016 [i.e., State Pollution Control Board (SPCB) in the respective State or Pollution Control Committee (PCC) in the respective Union Territory Administration] is required to prepare an inventory or review with regard to the biomedical waste generation at least once in five years in the coverage areas of the existing biomedical waste Page 54 of 71 HC-NIC Page 54 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT treatment and disposal facility. The prescribed authority is also required to extrapolate the coveragearea wise biomedical waste generation for the next ten years.
(b) SPCB/PCC is required to conduct gap analysis with respect to coverage area of the biomedical waste generation and also projected over a period of next ten years, adequacy of existing treatment capacity of the CBWTF in each coverage area of radius 75 KM.
All the SPCBs and PCCs shall conduct the gap analysis and based on the gap analysis, action plan for development of new CBWTFs is required to be prepared and submitted to MoEF & CC & CPCB within six months' time. In case of States/UTs, where no CBWTF is available, in such a case, SPCB/PCC being prescribed authority under the BMWM Rules is required to submit the detailed proposal to MoEF & CC/MoH & FW through the respective State Government or UT Administration. Also, the option of forming association by the group of heath care facilities (HCFs) to develop their own CBWTF also be encouraged following these guideline. In case, any coverage area requires additional treatment capacity, in such a case, action may be initiated by the prescribed authority for allowing a new CBWTF in that locality without interfering the coverage area of the existing CBWTF and beds covered by the existing CBWTF.
(c) SPCB/PCC shall identify the coverage area, which require additional treatment facility and bring it to the notice of the concerned department in the business allocation of land Page 55 of 71 HC-NIC Page 55 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT assignment in the respective State Government or UT Administration. The department in the business allocation of land assignment shall be responsible for providing suitable site in the identified coverage area for setting up of a CBWTF, in consultation with the prescribed authority (i.e., SPCB/PCC), other stakeholders and in accordance with these guidelines issued by CPCB from time to time.
(d) Alternately, a CBWTF may also be allowed to be established on a land procured by an entrepreneur in accordance with the location criteria suggested under these guidelines.
(e) The SPCB/PCC or concerned department in the business allocation of land assignment in the respective State Government or UT Administration may seek expression of interest from the proponents for development of new CBWTF (s) in the identified coverage area. Upon allocation of site to the proponent, the proponent is required to take necessary approvals as required under the Environment (Protection) Act, 1986 for development of the new CBWTF in accordance with these guidelines.
(f) In the absence of expression of interest by any proponent, then SPCB/PCC shall insist health care facilities to form association and to develop its own CBWTF in line with these guidelines or to have captive treatment facilities for ensuring treatment and disposal of generated biomedical waste as stipulated under the BMWM Rules, 2016.
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(g) In case of any regulatory action including closure of any existing CBWTF is inevitable, the respective SPCB/PCC may take action under the BMWM Rules including for making alternate arrangement to ensure safe disposal of the biomedical waste generated from the member health care facilities of such default CBWTF through CBWTF located nearby.
(h) In case of hilly areas considering the geography, only one CBWTF with adequate treatment capacity may be developed covering at least two districts to cater treatment services to the HCFs located in the respective Districts. The selection and allocation of site etc., should be done as per the criteria suggested under these guidelines. The treatment charges to be prescribed by the respective SPCB/PCC in consultation with the State Advisory Committee.
● LOCATION CRITERIA:
34 In the context of these guidelines, buffer zone represents a separation distance between the source of pollution in CBWTF and the receptor - following the principle that the degree of impact reduces with increased distance. The following parameters may be considered for ascertaining buffer distance on casetocase basis:
(i) Potential for spread of infection from wastes stored in the premises.
(ii) Applicable standards for pollution control and the relative efficiency of the existing incinerators and emission control systems,
(iii) Potential of fugitive dust emission from incinerators, Page 57 of 71 HC-NIC Page 57 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT
(iv) Potential for discharge of wastewater
(v) The potential for odour production,
(vi) The potential for noise pollution,
(vii) The risk posed to human health and safety due to exposure to emissions from incinerator,
(viii) The risk of fire and
(ix) Significance of the residual impacts such as bottom ash and fly ash.
As far as possible, the CBWTF shall be located near to its area of operation in order to minimize the transportation distance in waste collection, thus enhancing its operational flexibility as well as for ensuring compliance to the time limit for treatment and disposal of bio medical waste as stipulated under the BMWM Rules (i.e., within 48 hours). Also, the location of the CBWTF should be in conformity to the CRZ Norms and other provisions notified under the Environment (Protection) Act, 1986. The location shall be decided in consultation with the State Pollution Control Board (SPCB)/ Pollution Control Committee (PCC). The location criteria for development of a CBWTF are as follows:
(a) A CBWTF shall preferably be developed in a notified industrial area without any requirement of buffer zone (or)
(b) A CBWTF can be located at a place reasonably far away from notified residential and sensitive areas and should have a buffer distance of preferably 500 m so that it shall have minimal impact on these areas. In case of nonavailability of such a land, the buffer zone distance from the notified residential area may be Page 58 of 71 HC-NIC Page 58 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT reduced to less than 500 m by SPCB/PCC without referring the matter to CPCB by prescribing 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.
(c) The CBWTF can also be developed as an integral part of the Hazardous Waste Treatment Storage and Disposal Facility (TSDF) subject to obtaining of necessary approvals from the authorities concerned including 'environmental clearance' as per Environmental Impact Assessment 2006 and further amendments notified under the Environment (Protection) Act, 1986, provided there is no CBWTF exist within 150 KM distance from the existing TSDF.
35 On 3rd July 2017, the following order was passed:
"1 Leave to amend the prayer clause.
2 The draft amendment is allowed. The same shall be carried out
forthwith. A copy of the amended petition be provided to Mr. Sharma, the learned A.G.P. at the earliest.
3 Let Notice be issued to the respondents, returnable on 26th July 2017. Mr. Utkarsh Sharma, the learned Assistant Government Pleader waives service of notice for and on behalf of the respondent No.1 State of Gujarat. Direct service for the other respondents is permitted.
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4 Let there be an adinterim order in terms of para 24[C].
5 On the returnable date, a responsible officer from the Gujarat
Pollution Control Board shall remain personally present before this Court and explain whether any consent has been granted to put up a BioMedical Waste Treatment Plant. If consent has been granted, then what has been taken into consideration because it appears that there are residential houses in the vicinity of this particular land where the unit is put up by the private respondents.
6 Notify the matter on top of the Board."
36 Thereafter, on 26th July 2017, the following order was passed:
"Draft amendment is allowed. The same shall be carried out at the earliest. A copy of the amended petition be supplied to Mr. Utkarsh Sharma, the learned AGP appearing for the respondent State; Mr. Vaibhav Vyas, the learned counsel appearing for the G.P.C.B. and Mr. Satyam Chhaya, the learned counsel appearing for the respondents nos.4 and 5.
By order dated 03/07/2017, the adinterim order in terms of para 24(C) has been granted, the same continues as on date. In the wake of order now passed by the Collector granting the N.A. permission, the amendment has been moved, which has been allowed today. The matter has been heard extensively for the purpose of admission. Till further orders are passed, the Gujarat Pollution Control Board shall not issue Consolidated Consent and Authorization in favour of the respondents nos.4 and 5."
● FINAL ANALYSIS:
37 The crux of the matter is the tussle between the eco environmental 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 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 Page 60 of 71 HC-NIC Page 60 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT 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 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.
Page 61 of 71 HC-NIC Page 61 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT 38 Article 39 contemplates that the State shall direct its policy
towards securing that the operation of the economic system does not result in the concentration of wealth and the means of production to the common detriment. Article 47 refers to the duty of the State to raise the level of nutrition and standard of living and to improve the public health. As per Article 48A of the Constitution of India, the State shall endure to protect and improve the environment and the said Directive Principles of State policy is meant to protect the fundamental right conferred under Articles 14 and 21 of the Constitution of India, viz. Equality before law and Protection of life and personal liberty. Whereas the fundamental duty conferred under Article 51A(g) points out the obligation of the citizen to protect and improve the environment.
39 Articles 39, 47, 48A and 51A(g) of the Constitution of India read as follows:
"39. Certain principles of policy to be followed by the State. The State shall, in particular, direct its policy towards securing
(a) to (b) ....
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
(d) to (f) ...
47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
48A. Protection and improvement of environment and safeguarding of forests and wildlife. The State shall endeavour to protect and improve the Page 62 of 71 HC-NIC Page 62 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT environment and to safeguard the forests and wildlife of the country.
51A. Fundamental duties. It shall be the duty of every citizen of India
(a) to (f) ...
(g) to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.
(h) to (k) ..."
40 Right to healthy environment is the legitimate expectation, an aspect protected under Article 14 of the Constitution of India. Right to healthy environment is also a part of right to life protected under Article 21 of the Constitution of India.
41 The "first generation" rights are generally political rights such as those found in international convention on Civil and Political rights. The "second generation" rights are social and economic rights as found in the International Covenant on Economics, Social and Cultural Rights. The "third generation" rights, in today's emerging jurisprudence, encompass a group of collective rights demanding rights to healthy environment and giving rise to the principle of State's responsibility to protect the environment and this responsibility is clearly enunciated in the United National Conference on the Human Environment, Stockholm 1972 (Stockholm Convention) to which India was a party, vide Intellectual Forum vs. State of A.P., [(2006) 3 SCC 549].
42 There is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the environment, as undoubtedly, hygienic environment is an integral facet of the right to a healthy life and it would be impossible to live without a humane and healthy environment vide Godavarman v. Thirumal Pad, Tamil Nadu [(2002) 10 SCC 606].
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43 While the right to clean environment is a guaranteed fundamental
right under Articles 14 and 21 of the Constitution of India, the right to development through industrialization equally claims priority under fundamental rights, particularly under Articles 14, 19 and 21 of the Constitution of India. Therefore, there is a necessity for a sustainable development harmonizing both the needs and striking a golden balance between the right to development and right to clean environment. A Concept of Sustainable Development, an integral part of Articles 14 and 21 of the Constitution of India vide Jayal N D vs. Union of India, [(2004) 9 SCC 362].
44 Apart from these constitutional mandates under Articles 14, 21 of the fundamental rights, 47, 48A of the directive principles of State Policy and 51A(g) of the Fundamental Duty, to protect and improve the environment there are plenty of postindependence legislations on the subject but more relevant enactments for our purpose are: the Water (Prevention and Control of Pollution) Act, 1974 (the Water Act), the Air (Prevention and Control of Pollution) Act, 1981 (the Air Act) and the Environment (Protection) Act, 1986 (the Environment Act). The Water Act provides for the constitution of the Central Pollution Control Board by the Central Government and the constitution of the State Pollution Control Boards by various State Governments in the country. The Boards function under the control of the Governments concerned. The Water Act prohibits the use of streams and wells for disposal of polluting matters. It also provides for restrictions on outlets and discharge of effluents without obtaining consent from the Board. Prosecution and penalties have been provided which include sentence of imprisonment. The Air Act provides that the Central Pollution Control Board and the State Pollution Control Boards constituted under the Water Act shall also perform the powers and functions under the Air Act. The main function Page 64 of 71 HC-NIC Page 64 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT of the Boards, under the Air Act, is to improve the quality of the air and to prevent, control and abate air pollution in the country.
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 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 bio medical waste treatment facilities and "operator of a common bio medical 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 Page 65 of 71 HC-NIC Page 65 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT 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 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 Pollution Control Board. If, according to the applicants, operating a BioMedical waste Process Unit is an evil, then Page 66 of 71 HC-NIC Page 66 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT 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 Bio Medical 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.
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.
51 It is a settled law that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of "sustainable development". This is a Page 67 of 71 HC-NIC Page 67 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT development strategy that caters to the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequeath to the future. All environmentrelated developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by strict adherence to sustainable development without which life of the coming generations will be in jeopardy. The adherence to sustainable development principle is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand, right to development is also one. Here the right to sustainable development cannot be singled out. Therefore, the concept of sustainable development is to be treated as an integral part of life under Article 21. Weighty concepts like intergenerational equity, public trust doctrine and precautionary principle, which have been declared as inseparable ingredients of our environmental jurisprudence, could only be nurtured by ensuring sustainable development. To ensure sustainable development is one of the goals of the Environment (Protection) Act, 1986 and this is quite necessary to guarantee the right to life under Article 21. If the Act is not armed with the powers to ensure sustainable development, it will become a barren shell. In other words, sustainable development is one of the means to achieve the object and purpose of the Act as well as the protection of life under Article 21. Acknowledgment of this principle will breathe new life into our environmental jurisprudence and constitutional resolve. Sustainable development could be achieved only by strict compliance with the directions under the Act. The object and purpose of the Act: "to provide Page 68 of 71 HC-NIC Page 68 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT for the protection and improvement of environment" could only be achieved by ensuring strict compliance with its directions. The authorities concerned by exercising their powers under the Act will have to ensure the acquiescence of sustainable development. Therefore, the directions or conditions put forward by the Act need to be strictly complied with. Thus the power under the Act cannot be treated as a power simpliciter, but it is a power coupled with duty. It is the duty of the State to make sure the fulfilment of conditions or direction under the Act. Without strict compliance, right to environment under Article 21 could not be guaranteed and the purpose of the Act will also be defeated. The commitment to the conditions thereof is an obligation both under Article 21 and under the Act [vide N.D.Jayal vs. Union of India, (2004) 9 SCC 362].
52 The learned counsel appearing for the G.P.C.B. has assured this Court that there will be a continuous inspection and monitoring of the unit, and at any point of time, if it is found that the unit is not adhering to the terms and conditions of the consent order or the parameters, as laid down in the rules and regulations are not met with, then immediate steps shall be taken to take care of such a situation. The learned counsel appearing for the G.P.C.B. submitted that his client is an expert body, and after taking into consideration all the relevant aspects of the matter, have granted the consent order to operate the unit. According to the G.P.C.B., there is nothing wrong if such unit is permitted to be operated in the village.
53 I could have rejected this application simply on the ground that the issues raised in this petition are the very same which were raised before the Division Bench of this Court in the public interest litigation, Page 69 of 71 HC-NIC Page 69 of 71 Created On Thu Sep 21 23:37:13 IST 2017 C/SCA/12235/2017 JUDGMENT and the public interest litigation came to be disposed of recording that the unit shall be made functional only after all the parameters are satisfied. The Division Bench also observed in its order while dismissing the P.I.L. that, the operation of a C.B.W.T.F. is needed within the Kheda district having regard to the proximity with the health care units. The private respondents have undertaken to abide by all the terms and conditions, which have been prescribed in the consent order passed by the G.P.C.B. 54 Instead of rejecting this petition on the short ground of its maintainability, I have thought fit to go into the various issues having regard to the importance of the Bio Medical Waste Treatment and Disposal Plant and the right to health and live in a clean environment, as envisaged under Article 21 of the Constitution of India.
55 To a certain extent, Mr. Chhaya, the learned counsel appearing for the private respondents is right that this petition is lacking in bona fide. There is some external force working behind this petition. However, leaving this issue aside, I have concentrated on the main issues and have reached to the conclusion that there is nothing wrong if the unit is permitted to be operated in the village. If, at any point of time, the villagers find that the unit is causing pollution, then it shall be open for the villagers to bring it to the notice of the G.P.C.B. so that the G.P.C.B. can look into the matter at the earliest.
56 No error much less an error of law can be said to have been committed by the S.S.R.D. in passing the impugned orders. Neither any fault nor any error can be found even with the order granting N.A. permission.
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57 I do not see any violation to the constitutional mandate nor any
arbitrary and unreasonable exercise of powers by the authority concerned nor any violation to Articles 14, 19(1)(g) and 21 of the Constitution of India.
58 In the result, this petition fails and is hereby rejected. All the legal hurdles are vacated in executing the BioMedical Waste Treatment and Disposal Plant.
59 It shall now be open for the G.P.C.B. to issue the consolidated consent and authorisation in favour of the respondents Nos.4 and 5.
60 Notice stands discharged. The interim relief earlier granted stands vacated.
J.B.PARDIWALA, J.) chandresh Page 71 of 71 HC-NIC Page 71 of 71 Created On Thu Sep 21 23:37:13 IST 2017