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2010 DIGILAW 617 (JK)

Ab. Majid Ahangar v. State Of J&K

2010-12-13

Hasnain Massodi

body2010
1. Heard. Admit. The petition, on consensus of Learned Counsel for the parties, is taken up for final disposal at its threshold. 2. I have gone through the pleadings and have heard Learned Counsel for the parties. 3. The petitioner has set up a Common Bio-Medical Waste Treatment Facility (CBMWTF) under the name and style of M/s Kashmir Health Care System at Lassipora Pulwama. The petitioner thereafter in wake of order No. 86-HME of 2008 dated 24.7.2008, whereby the respondent No.1 and 2 decided to get the Bio-Medical Waste disposed off through private agencies, has been allotted contract for treatment of Bio-Medical waste, generated by Government hospitals at Srinagar. The respondent No.2 on behalf of the respondent No.1 entered into a formal Contract in this behalf with the petitioner on 10th July 2009. The respondent No. 3 earlier in the year 2006 granted consent in favour of the petitioner for setting up the Facility. The consent was renewed vide order No. 549 of 2009 dated 24.10.2009. Everything appears to have gone smooth for the petitioner, till Member Secretary State Pollution Control Board on 22nd July 2010 slapped a notice on the petitioner, requiring petitioner to make good the deficiencies claimed to have been found on inspection of the Facility and also to show cause why the consent order No. 549 of 2009 dated 24.10.2009 be not cancelled and petitioner’s Common Bio-Medical Waste Treatment Facility, closed. The notice was replied by the petitioner on 3.8.2010. The petitioner insisted that his Common Bio Medical Waste Treatment Facility (CBMWTF) had all the equipment required under Bio-Medical Waste (Management Handling) Rules 1998 and that the Bio-Medical Waste brought to the Facility was disposed of in accordance with rules. The respondent No. 3, notwithstanding the reply, vide order No. 51 SPCB of 2010 dated 8.11.2010, in exercise of powers under Section 5 Environment Protection Act, 1986, ordered closure of the Facility and asked the Deputy Commissioner Pulwama to close down and seal the premises, the Director Health Services Kashmir to deregister the Unit and Chief Engineer PDD (Electric and Maintenance) to disconnect the electric supply to the Unit. 4. 4. The petitioner aggrieved of the order No. 51-SPCB of 2010 dated 8.11.2010 throws challenge to the order and seeks its quashment on the grounds that as Facility did not have any deficiency as highlighted in show cause notice dated 7.9.2010 and that the equipment like "cold storage facility" was not a statutory requirement and thus not installed in the Facility. It is pleaded, that the respondents while making the impugned order did not go through and consider the reply to the show cause notice submitted by the petitioner. The respondents are said to have proceeded in an arbitrary, harsh and discriminatory manner while passing impugned order and to have acted without jurisdiction. It is pleaded, that the petitioner before expiry of the consent granted vide order No. 549 of 2009 dated 24.10.2009 duly submitted an application in the prescribed format for renewal of consent on 10.6.2010 and also deposited the requisite fee of Rs.15,000/- with the respondent No. 3, and in view of rule position the consent is assumed to have been granted in favour of the Facility in question. 5. The respondents have resisted the petition on the grounds that petitioner has suppressed material facts and failed to exhaust alternate remedies available to the petitioner before invoking writ jurisdiction of this Court. The petitioner is alleged to have fraudulently and deceitfully disposed off the Bio-Medical Waste by its sale to scrap dealers and thus left no option for the respondent No. 3 but to order closure of the Facility. The respondent No. 3 is claimed to have acted within jurisdiction while making the impugned order. 6. The Bio-Medical Waste (Management and Handling) Rules 1998 prescribe the mode and manner of collection, storage, disposal, treatment, handling etc of Bio-Medical waste. The rules lay down the procedure to be followed by the Prescribed Authority while granting authorization for generation, collection, storage, transportation, treatment, disposal and handling of Bio-Medical Waste. In terms of Rule 7 State Pollution Control Board -- respondent No. 3 herein, is the prescribed Authority clothed with powers to grant authorization for generation, collection etc of the Bio-Medical waste. In terms of Rule 7 Sub Rule 5 an authorization shall be granted for a period of three years, including an initial trial period of one year from the date of issue, to be renewed at the requests of the occupier/operator for a period of three years. 7. In terms of Rule 7 Sub Rule 5 an authorization shall be granted for a period of three years, including an initial trial period of one year from the date of issue, to be renewed at the requests of the occupier/operator for a period of three years. 7. In the present case the respondent No. 3 in violation of mandate of Rule 7(5) appears to have granted authorization in piece-meal and for a period of less than three years. The respondent No. 3, for the unknown reasons, instead of following mandate of Rule 7(5), has granted consent for six to nine months, making it necessary for the petitioner to make rounds of the office of respondent No. 3 after short intervals. The Rule making Authority, while providing for authorization/consent for three years, appears to have been alive to the difficulties of entrepreneurs in organizing finance and other resources for setting up the Facility and thought it necessary that once the Facility is found to satisfy the prescribed requirements, it should be allowed to function for a reasonable time, whereafter it again has to satisfy the Prescribed Authority that the Facility has all such equipments as are required under Rules. In the present case, after the respondent No. 3 was satisfied that the Facility set up by the petitioner, fulfilled all the statutory requirements and granted consent for setting up the Facility, such consent was to stay in force for three years or till 2009. The respondent No. 3 when approached by the petitioner in the year 2009 for renewal of the consent was again satisfied that the Facility fulfilled statutory requirements and thereafter issued consent vide order dated 24.10.2009. The consent is thus again to stay in force for a period of three years i.e. till 29.10.2012. The respondent No. 3 to 5 are thus not right in pleading that the consent granted in favour of petitioner vide consent order No. 549 of 2009 dated 24.10.2009 was valid up to July 2010 only. The petitioner, in the circumstances, was authorized, vide above consent, to run the Facility on the date the impugned order was made. 8. Though the show cause notice dated 22.07.2010, asked the petitioner to show cause why the consent granted vide aforesaid order be not cancelled, the impugned order did not revoke or cancel the consent but ordered closure of petitioner’s Facility. 8. Though the show cause notice dated 22.07.2010, asked the petitioner to show cause why the consent granted vide aforesaid order be not cancelled, the impugned order did not revoke or cancel the consent but ordered closure of petitioner’s Facility. The order impugned in the petition is not one under Rule 7 (8) of Bio-Medical Waste Management and Handing) Rules 1998 and thus Rule 13 is not attracted. The order impugned has been expressly made in exercise of powers under Section 5 Environment (Protection) Act, 1986. 9. Section 5 Environment (Protection) Act, 1986, empowers Central Government to issue binding directions in writing to any person, officer or any authority. In terms of Explanation (a) Rule 5 such directions may include direction asking for closure, prohibition, stoppage etc of any Industry or any other service. Rule 4 Environment Protection Rules 1986 prescribes the mode and manner in which direction under Section 5 Environment (Protection) Act, 1986, may be issued. In terms of Rule 4 such a direction is to be in writing, specifying the nature of action to be taken and time within which to be taken. Rule 4 (3-a) requires Authority, giving direction under Section 5 Environment Protection Act, to give an opportunity of not less than fifteen days from the date of serving of notice to the person or Authority to whom such a direction is issued, to file his objections to the proposed direction. Rule 4 Sub Rule 3-(b) assumes importance in the facts of the present case and may be reproduced here under:- 2[(3-b)] Where the proposed direction is for the stoppage or regulation of electricity or water or any other service affecting the carrying on any industry, operation or process and is sought to be issued to an officer or an authority, a copy of the proposed direction shall be endorsed to the occupier of the industry, operation or process, as the case may be, and objections, if any, filed by the occupier with an officer designated in this behalf shall be dealt with in accordance with the procedures under sub-rules (3-a) and (4) of this rule. Provided that no opportunity of being heard shall be given to the occupier if he had already been heard earlier and the proposed direction referred to in sub-rule (3-b) above for the stoppage or regulation of electricity or water or any other service was the resultant decision of the Central Government after such earlier hearing.]" 10. A bare look at the above provision leads to the conclusion that where a direction like one mentioned in Rule 4 (3-b) is issued, the person bound by such direction, is not only to be given an opportunity to file objections but also an opportunity of being heard. While holding so I draw support from the law laid down in M/s Brindavan Phosphates Pvt. Ltd v. Karnataka State Pollution Control Board, Bangalore and Others (2003 STPL (LE-Civil) 10964. In the present case the directions issued by the respondent No. 3 in exercise of powers under Section 5 Environment Protection Act 1986 includes a direction to Chief Engineer PDD to stop/disconnect electric supply to the petitioner’s Facility. In the circumstances the petitioner was not only to be given an opportunity to file objections to the proposed action but also to be given a right of hearing so as to enable the petitioner to convince the respondent No. 3 that the direction was unwarranted. The respondent No. 3 by not affording the petitioner, independent of right to file objections an opportunity of being heard, has violated the mandate of Rule 4 (3-b) Environment Protection Rules 1986. The impugned order is liable to be quashed on this ground alone. The respondent No. 3 in the show cause notice dated 22nd July 2010 only pointed out the deficiencies claimed to have been come across on inspection of the petitioner’s Facility and asked the petitioner to remove the deficiency/ install deficient equipment. The impugned order, however appears to have been passed on the basis of an occurrence not reflected in the show cause notice. What appears to have persuaded the respondent No. 3 to issue the direction /order No.51-SPCI dated 8.11.2010 is the report that a vehicle belonging to the petitioner carrying Bio-Medical Waste was found parked in the scrap dealers premises, at Babademb and that the driver was suspected to have entered into a deal with scrap dealer for sale of used gloves, bottles, waste, syringes etc. The petitioner obviously has not been afforded an opportunity to explain his stand as regards the alleged occurrence. In other words though the impugned direction/order has been passed after show cause notice, it is not made only on the grounds spelt out in the show case notice. The petitioner in effect has been denied right to convince the Prescribed Authority that the petitioner had nothing to do with the alleged occurrence or that the alleged occurrence was not of the nature it was projected to be by the reports received by the respondent No. 3. The respondent No. 3, thus again violated the procedural rights available to the petitioner under Rule 4, Environment Protection Rules 1986 while passing the impugned order. 11. For the reasons discussed above, the writ petition is allowed and the impugned order dated 08.11.2010, quashed. The respondents however, shall be free to initiate fresh action, if any warranted, against the petitioner in accordance with Rules, and this order by itself shall not enable the petitioner to run the Facility in violation of Bio-Medical Waste Management and handling) Rules 1998.