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2018 DIGILAW 213 (GUJ)

UTTARSANDA GRAM PANCHAYAT & 3 v. STATE OF GUJARAT

2018-01-23

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2018
JUDGMENT : R. SUBHASH REDDY, J. 1. The original petitioners in Special Civil Application No.12235 of 2017 have filed this Letters Patent Appeal under clause 15 of the Letters Patent aggrieved by the order dated 21.09.2017 passed by the learned Single Judge. Learned Single Judge dismissed the petition filed by the appellants – original petitioners. 2. Above petition was filed with the prayers which read as under : “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 26-05-2017 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.” 3. Appellant No.1 is Panchayat. Other appellants are residents of Uttarsanda village. Appellant No.3 is son of petitioner No.1 in Writ Petition (PIL) No.182 of 2014. Respondent Nos.4 and 5 have established a Biomedical Waste Processing Unit at Uttarsanda. For the aforesaid purpose, they sought N.A. Permission from the competent authority and when the same was refused, they approached Revisional Authority. The Revisional Authority has allowed the revision filed by the private respondents herein by directing the competent authority to grant such permission. 4. The private respondents have already established now Bio – Medical Waste Processing Unit. The Gujarat Pollution Control Board, by order dated 02.09.2015 has granted necessary consent and authorization to operate the Biomedical Waste Processing Unit in exercise of 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 granted authorization 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. 5. 5. At the first instance, mainly it was pleaded that if N.A. Permission is granted for the land in question, which is in close proximity with the residential building, same would cause pollution, a Public Interest Litigation was filed in which petitioner No.4 herein was also one of the petitioners in the said PIL. On similar grounds, when the petition was filed by way of PIL being Writ Petition (PIL) No.182 of 2014, same came to be disposed of by observing that the Unit shall be made functional only after all the parameters are satisfied. Division Bench of this Court further observed in order dated 05.02.2015 that operation of a CBWTF is needed within the Kheda District looking to its proximity with the Health Care Units. In the said petition, private respondents have undertaken to abide by all the terms and conditions which are prescribed in the consent order passed by the Gujarat Pollution Control Board. In spite of such order which has become final, this petition is filed raising similar grounds which revolve around the allegation of pollution. 6. The learned Single Judge has considered in detail all the earlier orders passed by this Court in PIL at various stages and in the impugned order dated 21.09.2017, it is recorded that to some extent case of the private respondents is correct that the petition is lacking in bona fides and there is some external force working behind the petition. Paragraph No.52 to 56 of the order passed by the learned Single Judge reads as under : “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. 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, 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 BioMedical 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. 7. 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. 7. We have heard learned Counsel Mr.Hasit Dave for the appellants herein at the stage of admission and learned Counsel Mr. Satyam Chhaya for the private respondents, who appeared before the learned Single Judge. 8. During the course of hearing, it is brought to our notice by learned Counsel Mr. Chhaya appearing for the private respondents that in fact the appellant – Gram Panchayat also approached National Green Tribunal, Western Zone Bench, Pune by way of Original Application No.181 of 2017 seeking closure of CBWT facility and the use of Biomedical Waste Treatment Plant which has started its operation. Said application was disposed of in view of appeal remedy available to the Gram Panchayat against the grant of consent and authorization granted by the Gujarat Pollution Control Board. It is further brought to our notice that after disposal of Original Application No.181 of 2017 by the National Green Tribunal, Pune by order dated 20.11.2017, in fact, first appellant – Gram Panchayat has filed appeal before the appellate forum and said appeal is pending. It is further submitted that on very similar grounds, again the appellant wants to pursue this appeal though the appeal filed by the first appellant – Gram Panchayat is pending before the Appellate authority under Section 31 of the Air (Prevention and Control of Pollution) Act, 1981. 9. Even in this appeal, it is mainly submitted by learned Counsel Mr. Dave for the appellants that land in question for which N.A. permission is granted, is in close proximity of some residential houses. It is submitted that in spite of valid objections raised by the Gram Panchayat, Revisional Authority has not considered such objections and allowed revision. It is contended by learned Counsel that if the unit is allowed to operate on the site in question, it will create serious pollution problem and create health hazard to the residents of Gram Panchayat. Further it is fairly submitted that unit has started two months back and it is operational pursuant to necessary consent / authorization granted by the Gujarat Pollution Control Board. 10. Further it is fairly submitted that unit has started two months back and it is operational pursuant to necessary consent / authorization granted by the Gujarat Pollution Control Board. 10. On hearing learned Counsel for the appellants and learned Counsel appearing for the private respondents at the stage of admission, we have perused detailed order passed by the learned Single Judge and other relevant material placed on record. 11. Mainly, it is the case of the appellants that if the unit is allowed to run, it will create pollution in view of close proximity of some residential buildings within area of Gram Panchayat. On similar lines, when the petition was filed by way of PIL, the petition was disposed of by recording finding that unit is to be operated only after all the parameters are satisfied. Further, the private respondents have undertaken to abide by all the terms and conditions which are prescribed in the consent order passed by the Gujarat Pollution Control Board. 12. It is the case of the Gujarat Pollution Control Board in the petition that expert body has examined the matter and after taking into consideration all the relevant aspects, granted consent to operate unit. According to Gujarat Pollution Control Board there is nothing wrong if the unit is permitted to be operated in the Gram Panchayat limits. Authorization to operate Biomedical Waste processing unit is covered by Hazardous Waste (Management, Handling and Transboundary Movement) Rules 2008 framed under the Environmental Protection Act, 1986. 13. Except allegation of environmental issue, no other ground is urged before us to assail the validity of the order which is challenged in the petition. So far as environmental aspect is concerned, apart from the order passed by this Court in PIL which has become final, the appellants have also approached National Green Tribunal, Pune by way of Original Application No.181 of 2017, which was disposed of by order dated 20.11.2017. Order dated 20.11.2017 passed by National Green Tribunal, Pune reads as under : “Heard. Perused record. Order dated 20.11.2017 passed by National Green Tribunal, Pune reads as under : “Heard. Perused record. The present application has been moved invoking Precautionary Principle under Section 20 of the National Green Tribunal Act, 2010 for seeking closure of CBWT facility and the use of Bio Medical Waste Treatment Plant which has started operation, according to the learned Counsel appearing on behalf of the Applicant in the last week of October, 2017 on the land bearing S.No./Block No.1817 paike Ledger/Khatta No.791 of H.06777 of Village Uttarsanda, Taluka Nadiad, Dist. Kheda, Gujarat. It is submitted that the Respondent No.1 – GPCB disregarding the evaluation parameters necessary to commence the operations of CBWT facility has granted Consolidated Consent and Authorisation to the said CBWT facility under the provisions of Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and Hazardous Waste (Management, Handling and Transboundary Movement) Rules 2008 framed under the Environment (Protection) Act, 1986 on 1st November, 2017. Law provides relief against such grant of Consent and Authorisation by way of appeal. Mischief alleged can be agitated before the Appellate Forum. We, do not therefore, see any propriety in entertaining the present application. The application is, therefore, dismissed. Application No.181/2017 stands disposed of accordingly.” 14. The appeal is filed before the appellate authority by the very same Gram Panchayat with the prayers which reads as under : “(A) The appellant herein humbly prays before this Hon'ble Court be pleased to quash and set aside the Final CCA Provisional Consent order dated 1.11.2017 with all earlier permission and further direct immediate closure of this CBWT Facility and the usage of the Haza Clean Bio Medical Waste Treatment Plant, as established and constructed and now being operated by the respondent no.4 and 5 in the village of Uttarsanda in S.No./Block No.1817 paike ledger / khata No.791 of H.06777. (B) And or in the alternative To shift the same at any other alternate site which is a demarcated or industrial area far from any residences etc., as can be given by the designated authority. (B) And or in the alternative To shift the same at any other alternate site which is a demarcated or industrial area far from any residences etc., as can be given by the designated authority. (C) The appellant herein humbly pray before this Hon'ble Court to stay the further use and operation of the Final CCA dated 1.11.2017 for the said Haza Clean Bio Medical Waste Treatment Plat as established and constructed by the respondent no.4 and 5 in the village of Uttarsanda at S.No./Block No.1817 paike ledger No.791 of H.06777 till the final disposal of the present application and/or till proper alternative arrangements are made. (D) Exparte ad interim relief in terms of prayer C above may kindly be granted pending issuance of notice to respondents and further process of this case. (E) The appellant also prays that this Hon'ble Court upon issuing notice to the respondents, may also be pleased to direct the GPCB (respondent No.1) to submit all documents of the clearances and permissions granted to the respondent no.4 and 5 in this case, to enable a proper adjudication of this case, as the same have not been fully provided to the appellant. (F) For costs incurred so far in this issue including legal expenses, and compensatory and exemplary costs on the concerned respondents be awarded to the appellant, and also those for distribution to the affected persons of village Uttarsanda. (G) Any other further reliefs that may be deemed fit in the facts and circumstances of the case may also please be granted.” 15. In view of the fact that earlier order passed in PIL has become final, further with the very same grounds the appeal filed by the appellants is pending consideration and further having regard to reasons recorded by the learned Single Judge, we are of the view that no case is made out to entertain this appeal. It is open for the appellants to pursue the appeal pending before the appellate authority. Having regard to reasons recorded by the learned Single Judge and in view of pendency of appeal before the appellate forum under the provisions of Air (Prevention and Control of Pollution) Act, 1981, we do not find any merit in this appeal so as to admit the same. Accordingly, the Letters Patent Appeal is dismissed at the stage of admission. Consequently, the Civil Application stands disposed of. Accordingly, the Letters Patent Appeal is dismissed at the stage of admission. Consequently, the Civil Application stands disposed of. No order as to costs.