BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI. APPEAL Nos. 46 and 47 of 2013 (SZ) In the matter of: Shree Consultants Common Facility for Bio-Medical Waste Treatment & Disposal No.724, 1st Floor, Smt. Veeramma Memorial Complex, Ramakrishna Road Fort Mohalla, Mysore 570 004 Represented by its Proprietor Sri.Srikanth C .. Appellant (in both the appeals) AND 1. Karnataka State Appellate Authority, Bangalore under Water and Air (Prevention and Control of Pollution) Act, 1974 an 1981 2. The Karnataka State Pollution Control Board, 1 to 5th Floors No.49, Church Street Bangalore-560 001 Represented by its Member Secretary 3. Senior Environmental Officer (08) The Karnataka State Pollution Control Board, 1 to 5th Floors No.49, Church Street Bangalore-560 001 4. The Environmental officer Regional Office Karnataka State Pollution Control Board, Flat No.436-D Hebbal Industrial Area K.R.S.Road, Metgalli Mysore urban, Mysore-570 016 5. M/s. GIPS BIOTECH No.1052 HIG 1st Cross,Bhogadhi Road 2nd Stage North, Mysore 570 026 Represented by its Managing Partner Sri. M. Suresh 6. The Member Secretary Central Pollution Control Board Parivesh Bhawan East Arjun Nagar New Delhi .. Respondents (in both the appeals) (The 6th respondent was impleaded in the order dated 03.02.2014 of the Tribunal) 2 Counsel appearing: For applicant: M/s. V.Sudhakar and K.S. Viswanathan, Advocates For respondents: Shri T.K. Bhaskar, Advocate for respondent Nos. 2 to 4, Shri Dilip Kumar, Advocate for respondent No. 5 M/s D.S. Ekambaram and P. Jayalakshmi Advocates for respondent No. 6 JUDGMENT
Present:
1. Hon'ble Shri Justice M. Chockalingam, Judicial Member
2. Hon'ble Prof. Dr. R. Nagendran, Expert Member ________________________________________________ Dated, 14th July 2014 ________________________________________________ (Hon'ble Shri Justice M. Chockalingam, Judicial Member) The appellant herein being aggrieved by the common judgment dated 20.04.2013 in Appeal Nos. 48 & 49/2012 passed by the Karnataka State Appellate Authority, Bangalore, under Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, ( for short 'Water and Air Acts') has filed the above appeal on the following brief facts and grounds.
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2. The appellant, a proprietary concern is involved in the Environmental Consultancy and other allied activities. The appellant was interested in establishing a Common Biomedical Waste Treatment and Disposal Facility (for short 'CBWTF') which was then a new concept in India. Accordingly, the appellant approached the respondents with an application for setting up a CBWTF. On examining and scrutinizing the same and inspecting the place at which the proposed plant to be erected the first respondent herein by its order dated 02.05.2011 has issued Consent order to establish of CBWTF under Water and Air Acts at Sy.No.25 of Varuna village Mysore. With an enormous investment, the appellant established CBWTF providing employment to 30 to 40 persons with 7 dedicated vehicles to transport the bio-medical waste generated by the hospital, nursing homes, clinics from four districts viz., Mysore, Coorg, Hassan and Chamarajanagar, which are all situated within a range of 120 km from the plant established by the appellant. The construction of the plant was completed in the year 2002 and the 2ndrespondent started issuing consents for every year with effect from first July to 30th June of 4 subsequent years under both the Water and Air Acts. The appellant was given Consent orders for the last 10 years without any hindrance or any allegations from any quarter including the hospitals, clinics, nursing homes etc. from all the four districts.
3. At the beginning, in the year 2002-03 the district of Hassan was also included and the appellant was collecting bio-medical waste from 4 districts regularly without any default and the same has been disposed of in a scientific manner and as per the guidelines of the Karnataka State Pollution Control Board (for short 'KSPCB').
4. In the year 2010, the respondent Board informed the appellant that they are permitting for establishment of one more plant at Hassan though the appellant was not provided with an opportunity of being heard before excluding the district of Hassan from the appellants CBWTF. Subsequently, without even consulting the appellant, the Consent Order was redistricted only to three districts viz., Mysore, Chamarajnagar and Coorg, excluding the Hassan District. However, the appellant did not challenge the same. 5
5. The said action of the second respondent/KSPCB is contrary to the Biomedical Waste (Management and Handling) Rules, 1998 and regulations thereunder according to which the prescribed authority may cancel or suspend an authorization, if for reasons, to be recorded in writing, the occupier/ operator has failed to comply with any provision of the act of these rules: provided no authorization shall be canceled or suspended without giving a reasonable opportunity to the occupier /operator of being heard. As per the guidelines of Central Pollution Control Board, (for short 'CPCB') regarding the coverage of the area for CBWTF in any area, only one CBWTF may be allowed to cater up to 10,000 beds at the approved rate by the prescribed authority. A CBWTF shall not be allowed to cater to the healthcare units situated beyond a radius of 150 km. However, in any area where 10,000 beds are not available within a radius of 150 km, another unit may be allowed to cater to the needs of healthcare units situated outside the said 150 km. The Biomedical Waste (Management and Handling) Rules, 1998 in its clause 3. Definitions in point (3) and (4) read as follows:
6(3) 'Authorization' means permission granted by the prescribed authority for the generation, collection, reception, storage, transportation, treatment, disposal and /or any form of handling of bio-medical waste in accordance with rules and any guidelines issued by the Central Government. (4) 'Authorized Person" means an occupier or operator authorized by the prescribed authority to generate, collect, receive, store, transport, treat, dispose and/or handle the bio medical waste in accordance with these rules and any guidelines issued by the Central Government to operate.
6. Following the said guidelines, the appellant unit was given four districts. Since the district of Hassan was also situated within 120 km radius, the same was also included to the appellant CBWTF. As per the guidelines, 10,000 beds covering 150 km to cater to the health care units was permitted. However, the same guidelines provide for permitting the said CBWTF to extend its operation beyond 150 km, if 10,000 beds are not available. In other words, the whole object of providing CBWTF at a particular place is to see that the said facility shall be made available to at least 7 for 10,000 beds, keeping in mind to minimize the number of CBWTF in the area. It does not mean that the respondents or the State Governments can establish as many as CBWTF wherever they want, according to their whims and fancies and further the object is not to establish more and more CBWTF to ensure that there shall not be any environmental degradation affecting ecological system. The appellant is one of the first CBWTF established in the State of Karnataka and also in the entire South India. Till to-day there were no complaints whatsoever either from the public or from the healthcare units of the three districts to whom the appellants CBWTF is provided with regard to collection of bio-medical waste every day and disposing of the same scientifically.
7. The appellant was also given the consent for three districts for the period from 01.07.2012 to 30.06.2015 as per the authorization No.PCB/F-04/BMW/2012-13/756 under the Environmental (Protection) Act, 1986 (for short 'EP Act') read with the Bio-medical Waste (Management and Handling) Rules, 1998 dated 09.10.2012. Similarly, consent was issued by the respondent-Board as per the Consent 8 Order No PCB / Shree Consultants / BMW 2012/ 757 dated 09.10.2012 for a period between 01.07.2012 to 30.06.2013 under the Water and Air Acts, respectively. The respondent authorities before issuing the Consent Order, will make inspection report and the latest inspection report submitted by the Regional Office of the second respondent dated Nil shows that the appellant unit is running under capacity. As per inspection report of the Regional Officer, Mysore on the appellant's CBWTF on 18.07.2012, the Regional Officer, Mysore has referred to various facts including the capacity of the appellant, which shows that the appellant CBWTF has the capacity to treat and dispose of the Bio Medical waste of 12,000 to 15,000 beds. However, presently the CBWTF of the appellant is getting the bio-medical waste from around 5000 beds only from all the three districts. Similarly, in the said inspection report, the second respondent has referred to the incinerable waste of 10,000 kg per month or 333 kg per day. The capacity of the appellant CBWTF is 100 kg per hour and is now working only 3-4 hours per day. By working in three shifts of 8 hours in a day unit can process up to 2400 kg of incinerable waste per day. Accordingly, the 9 appellant is not running its plant, even to 3 to 4 hours per day. This only goes to establish that the appellant is running its CBWTF under the capacity. Further, as stated above the collection of bio-medical waste from the three districts is hassle free and on regular basis and till to-day there were no complaints against the appellant CBWTF.
8. Under these circumstances, a proposal was mooted in the month of March, 2012 with regard to establishment of second CBWTF in Mysore, for the reasons best known to the respondent authorities. The copy of the letter of the Senior Environmental Officer, the fourth respondent to the fifth respondent dated 25.04.2012 directing Gibbs Biotech the 5th respondent to submit the feasibility report. In a casual manner the fourth respondent had submitted feasibility report to the Respondent Nos. 2 and 3, herein which does not disclose the correct facts and figures. In fact, inflated figures were furnished to make believe that the capacity of the appellants CBWTF is not sufficient and one more CBWTF is needed at Mysore. When the latest report of the Environmental Officer of the Mysore discloses the fact that 10 the appellant is running under capacity, how can there be a contrary report from a person who is interested to establish one more CBWTF. The feasibility report submitted by the fifth respondent exaggerated by showing that there is generation of 5000 Kg of incinerable bio-medical waste per day, forwarded by the same Environmental Officer of the KSPCB, Mysore, the third respondent to the Head office, Bangalore, with a recommendation. It is an imaginary one and inflated figure. In fact, the appellant has brought to the notice of the respondents herein that the actual generation of incinerable bio-medical waste from the hospitals, nursing homes, clinics, labs etc., in three districts. The same was submitted to the respondent No.2 by the letter of appellant dated 11.10.2012.
9. In the mean time, it appears there was a discussion by the Lok Adalath of the Hon'ble High Court of Karnataka, Bangalore, in the proceedings dated 02.05.2012 of the Regional Lok Adalath of the Hon'ble High Court Legal Service Committee, at Mysore chaired by the Hon'ble Justice Sri Shyledendra Kumar and Sri Yellappa Reddy 11 wherein a presentation was made by the then Deputy Commissioner of the Mysore that there is satisfactory disposal of the bio-medical waste in the Mysore. However, one Sri Ramesh Kikkeri, a member of an NGO, made representation before the said Lok Adadalath that CBWTF should be established within 50 to 60 km of all the places which generate bio-medical waste. The same was recorded in the said proceedings and directed the Regional Environmental Officer Mysore, the 4threspondent to look into the matter and to work out ways and means of giving permission for such CBWTF. This is a kind of deliberate act on the part of the NGO, conniving with the Regional Environmental Officer Mysore and to take cue from the Lok Adalath of the Hon'ble High Court Legal Service Committee for establishing second CBWTF at Mysore. The representative of the NGO has no knowledge, about the guidelines in the establishment of CBWTF or with a deliberate act made such a representation before the Hon'ble High Court Legal Service Committee without facts and figures. There is no basis for making such a statement before the Hon'ble High Court Legal Service Committee that 12 bio-medical waste cannot be transported for a long distance. On the other hand, the guidelines of the CPCB, clearly provides for CBWTF to be established to collect and dispose of the bio-medical waste at a range of 150 km covering 10,000 beds from the healthcare units and that there was no basis for making such a representation before the Hon'ble Lok Adadalat. He has not produced any material to substantiate that there is a need to establish another CBWTF at Mysore or any place in the districts of Mysore, Coorg and Chamarajanagar. It is totally unnecessary. Having regard to the fact that the appellant CBWTF is covering needs of all the healthcare units of the three districts without there being clear material on facts regarding inadequacy of appellants CBWTF, the respondent authority as a matter of right or as a matter of course cannot decide to establish another CBWTF next to appellants' unit.
10. The date of application made by the respondent No.5 to the Mysore KSPCB office is 12-03-2012. The date of inspection of location / land by the KSPCB officials is on 12- 03-2012 i.e., the third respondent. The date of forwarding 13 the application with report to the head office is dated 13-03- 2012. The 4th respondent directed the 5th respondent to submit feasibility report on 25.04.2012. The Lok Adalath of Hon'ble High Court Legal Service Committee. was held 02- 05-2012. However, the 4threspondent referring to the proceedings before the Hon'ble Lok Adalath at Mysore dated 02.05.2012, although the application was processed and sent before the Lok Adalath, has recommended to the 2nd respondent for issuing a consent i.e., Consent for Establishment under the Water and Air Acts in favour of the fourth respondent for establishment of CBWTF at Gajjegowdanapura village, Jaiypura Hobli, Mysore Taluk and District, which is just about 25 km from the appellant's CBWTF. This action of the 4th respondent clearly establishes that the proceeding of the Lok Adalath of Hon'ble High Court Legal Service Committee was used to make out a case for establishment of second CBWTF at Mysore, though technically not only feasible and not required at all. The action of the 4th respondent appears to be for extraneous considerations with oblique motives. In the said recommendation, the 4th respondent, in order to make 14 out a case for establishment of second CBWTF, has referred to the data furnished by the appellant as per the agreement that the appellant has to collect bio-medical waste from 938 healthcare units, as against which the appellant is collecting bio-medical waste from only 180 healthcare units. It was further observed that the appellant is not collecting the bio-medical waste as per the execution of the agreement. The appellant has, more than once, submitted the data of participating healthcare centers to the KSPCB on various occasions. It is a device adopted by the 4threspondent to help the 5th respondent and has made such a report against the appellant. When once the appellant is given authorization and consent for disposal of bio-medical waste in its CBWTF, from the healthcare units of the three districts, it is the sole responsibility of the appellant to collect all the bio-medical waste generated by all the healthcare units in the three districts, whether it is government or private hospitals, clinics, etc. The data furnished by the appellant in the monthly report to the respondent authorities is with regard to the bigger hospitals and not the clinics. However, having sensed the mischief by the 4th respondent 15 in making out a case for establishment of another CBWTF, the appellant is submitting the details of all the health care units of each one of the districts from where the appellant is collecting bio-medical waste. Notwithstanding the fact that none of the clinics nor the nursing homes have made any complaints against the appellants for the last 10 years and that the appellant is not collecting the bio-medical waste, the 4th respondent was bent upon to make out a case against the appellant unit. To overcome such deficiency, the 4th respondent has stated in the recommendation dated 18.10.2012 that there were oral complaints against the appellant. It is unfortunate on the part of the officers of the KSPCB for using this as a devise and making allegations against the appellants' CBWTF which is carrying its obligation to the satisfaction of one and all. At no point of time, the respondents nor the CPCB, have received any complaints from any quarter in the last 10 years. Apart from the same, there are no allegations from the neighbors of the appellant's CBWTF with regard to causing any damage to the environment and ecology and causing health hazard in disposing of the bio-medical waste scientifically. In fact, as 16 and when the tests were conducted by the officers of the KSPCB or the CPCB, all the values were found to be within permissible limits. The CPCB has appreciated the work of the appellant in maintaining its CBWTF. The District Health Officer, Mysore, by way of a reply dated 05.07.2012 addressed to the Deputy Commissioner, Mysore, informed that the appellant's CBWTF is carrying its activities scientifically and they have not found the bio-medical waste stored more than 48 hours. Though the capacity of the appellant CBWTF is to dispose of bio-medical waste generated from 15,000 beds, it is getting bio-medical waste from only around 5000 beds. The laboratory analysis of the CBWTF of the appellant shows that the parameters of the appellant are well within the prescribed limits of the KSPCB as per the report of the Ganesh Consultancy and Analysis Services, recognized by the KSPCB. A similar letter has been written by the District Health Officer, Chamarajnagar, to the appellant requesting his cooperation in sensitizing/ conducting awareness regarding the subject. 17
11. As the appellant has sensed the gravity of the situation of proposing to grant of Consent for Establishment to establish another CBWTF in favour of the fifth respondent, the appellant had addressed several letters to the KSPCB dated 08.10.2012 and 11.10.2012 disputing the feasibility report submitted by the 5threspondent with statistics. The appellant also approached the CPCB on 08.10.2012 regarding the 2nd respondents' proposal to establish second CBWTF at Mysore. The CPCB by its letter dated 22.10.2012 addressed to the 2nd respondent informed that the appellant had made a representation objecting for the establishment of the second CBWTF at Mysore and also contended that it is contrary to the guidelines issued by the CPCB and further directed the respondent authorities to examine the complainant of the appellant in the light of the provisions of the Bio-medical Waste (Maintenance and Handling) Rules, 1998 as amended and the guidelines and to submit the report. However, the 2nd respondent authorities refused to take note of the CPCB communication dated 22.10.2012. On the other hand, they proceeded to issue the impugned order dated 24.11.2012 permitting the fourth respondent to 18 establish one more CBWTF at Mysore by issuing Consent for Establishment.
12. The CFE is issued for a period of 5 years which is generally not the usual practice. According to the guidelines for common bio medical waste facility Section K- point iii and iv reads as follows;
Iii) "The SPCB / PCC upon receipt of such work plan shall, review the proposal and "consent to establish" shall be issued to the proponent with required conditions."
iv) Once the proponent establishes the necessary infrastructure, the site and the resources shall be inspected by the SPCB /PCC for the adequacy of the facility/ equipment. Upon satisfactory recommendation, the authorization under Bio-medical waste (management and handling) rules shall be issued with the necessary condition to the proponent." However, the respondents, for reasons best known to them have in the 8th clause authorized the applicant, the third respondent to collect the waste from health care centers in Mysore in the Consent to Establish 19 itself before the basic establishment of the CBWTF, which is impermissible and contrary to the rules.
13. The appellant being aggrieved by the action of the respondent Nos. 2 to 4 in issuing the impugned Consent for Establishment, bearing No.PCB/SEO/EO/58/BMW/2512/909 dated 24.11.2012, in favour of the 5th respondent filed two separate appeals under the Water and Air Acts in Appeal Nos. 48/2012 and 49/2012 before the Appellate Authority, Bangalore on 10.12.2012. The Appellate Authority has stayed the impugned order of the Consent for Establishment of the respondent Nos 2 to 3 dated 24.11.2012 on 12.12.2012 and issued notices.
14. In the course of hearing, when the question with regard to the guidelines framed by the CPCB was an issue, the appellant thought it fit to implead the Union of India as well as the CPCB. Accordingly, an application was filed on 19.02.2013 to implead them in the above appeals before the Appellate Authority. However, the Appellate Authority refused to consider the said application to implead them and accordingly the said application was dismissed. 20
15. The Appellate Authority has filed objections in a similar matter i.e., in Appeal No.53/2012 and made submissions that the same objections are adopted in Appeal Nos. 48 and 49/2012. Similarly, the 5th respondent in whose favour the impugned Consent for Establishment was issued for establishment one more CBWTF filed detailed objections, contending that the action of the respondent Nos. 2 to 4 in permitting the 5th respondent to establish one more CBWTF as per impugned order of Consent to Establish dated 24.11.2012, is just and proper. It is further contended that there is no prohibition for establishment of any number of CBWTF and the guidelines issued by the CPCB under Column No. 8-Coverage Area of CBWTF has no relevance for the facts and circumstances of the case and said guidelines are not binding on the State Pollution Control Board.
16. When the Appellate Authority sought to know about the appellant's average receipt of bio-medical waste, particularly incinerable waste and number of beds it is serving, the appellant has filed a memo dated 27.02.2013 during the 21 course of the argument, which clearly discloses that the appellant's CBWTF is running under-capacity. As against its capacity of 100 kg per hour of treating incinerable waste, it is working only 3 to 4 hours a day and as such it was not even utilizing its 1/3 capacity. The total number of beds was not more than 5500 from all the three districts. There were no complaints whatsoever from any quarters against the appellant in collecting and disposing of the bio-medical wastes.
17. The matter was elaborately heard by the Appellate Authority and the judgment was reserved. In the meantime the appellant also approached the Union of India and the CPCB for clarification with regard to the application of the guidelines issued by the CPCB. The CPCB with a covering letter dated 01.04.2013 enclosed the clarification dated 25.03.2013 issued by the Union Ministry, clarifying that while permitting additional CBWTF one should ensure fixed coverage area for each of the authorized CBWTF taking into account the provisions in the guidelines. On receipt of the covering letter dated 01.04.2013 from the CPCB along with 22 the clarification, the appellant has filed the same on 10.04.2013 before the Appellate Authority. The same was acknowledged by the Appellate Authority.
18. The appellant herein had strenuously contended before the Appellate Authority that the respondent Nos. 2 to 4 ought not to have permitted one more CBWTF to be established within 25 km from the appellant's CBWTF. Further, it is also stated before the Appellate Authority that the site where the proposed CBWTF of the 5th respondent to be situated is on the highway and in proximity to the residential areas. The Appellate Authority, by its order dated 20.04.2013 dismissed the Appeal Nos.48/2012 connected with Appeal No.49/2012 filed by the appellant under both the Water and Air Acts on the ground that the KSPCB had all the powers to grant consent for CBWTF under the E P Act,1986, as there is no restriction restricting its power. Further, an observation in the Lok Adalath of the Hon'ble High Court Legal Service Committee was also referred which has nothing to do with the permission to establish additional CBWTF by the KSPCB. In fact, the Lok Adalath proceeding was held in the 23 month of May 2012, whereas the process for considering the grant of one more CBWTF was initiated on 12.03.2012. Therefore, the observations of the Lok Adalath dated 02.05.2012 cannot have any bearing in considering the case of the 4th respondent application for grant of Consent for Establishment of one more CBWTF within 25 km, from the appellant's CBWTF.This point was raised before the Lok Adalath at the instance of 5th respondent through his own men who participated in the above proceedings.The 4th respondent being the Environmental Officer of the Regional Office at Mysore has sworn in a false affidavit and produced inflated figures to see that the 5th respondent gets Consent for Establishment of one more CBWTF within 25 km from the appellant's CBWTF. The Appellate Authority, even without considering the case of how the guidelines are not binding on the KSPCB, has virtually discarded the same, holding that the said guidelines are subject to Acts and Rules.
19. The guidelines issued by the CPCB, is in exercise of its powers under the Bio-medical Waste (Management and 24 Handling) Rules, 1998 only. The guidelines also have been made part of the Bio-medical Rules. It is at the stage of issuing Gazette Notification by the Central Government. Therefore, it cannot be said by the Appellate Authority that the KSPCB need not be bound by the same and there are no restrictions and prohibitions on the KSPCB to give permission for additional CBWTF, contrary to guidelines. Accordingly, the Appeal Nos.48 and 49/2012 were dismissed by the Appellate Authority by its common order dated 20.04.2013.
20. The appellant being aggrieved by the judgment dated 20.04.2013 of the Appellate Authority in Appeal Nos.48 and 49/2012 is filing this appeal. Hence, the appellant herein has prayed to set aside the order dated 20.04.2013 passed by the Appellate Authority, Bangalore in Appeal Nos.48 & 49/2012, by allowing this appeal and also grant the relief as prayed for in the Appeals No. 48 & 49/2012, filed before the Appellate Authority, Bangalore.
21. Per contra, the 2nd, 3rd and 4th respondents have filed a common reply countering the contentions putforth by the 25 appellant. The brief defence of the 2nd, 3rd and 4th respondents herein is narrated below:
22. The respondents are responsible to ensure effective disposal of bio-medical waste and the 2nd respondent is vested with the authority to issue consent for establishment of common bio-medical waste management treatment facility in adherence to due process of law. The consent for the establishment issued by the 2nd respondent to the 5th respondent on 24.11.2012 is legal and valid. Further, the respondents are not specifically prevented from issuing consent for establishment of more than one waste management facility in an area. The appellant is abusing its position as a sole operator of CBWTF in the particular three districts. The respondents have been receiving various complaints both oral and written against the appellants regarding ineffective and improper methods of bio-medical waste disposal in the region. Hence, if the respondents are allowed to operate without any alternative, the object of effective bo-medical waste management will be defeated. The respondents also took notice of the increasing demand 26 for effective bio-medical waste treatment facility and with the current facility the appellant would not be able to manage the increase in demand. Hence, there is an imminent need for establishing a new CBWTF in the same region. The appellant has filed the current appeal with the sole intention to delay the process of establishment of alternative arrangement for disposing the bio-medical waste in the three districts.
23. The appeals have been filed mainly because of business rivalry and ulterior motive of the appellant to prevent 5th respondent from establishing and operating a CBWTF and the appellant has no locus standi to question the validity of the consent order dated 24.11.2012 issued by the 2nd respondent, when the order was issued after following the due process of law.
24. The appellant had applied to the 2nd respondent for grant of consent to establish and operate a CBWTF at Sy. No.25 of Varuna Village, Mysore. The Board, after scrutinizing the application, issued consent for erecting and operating the CBWTF plant vide its order dated 02.05.2011 27 which was renewed periodically by the 2nd respondent. The consent order under Water and Air Acts and authorization under Bio-Medical Waste (Management and Handling) Rules, 1998 were issued by the respondent to the appellant to operate the facility and collect the bio-medical waste from the Health Care Establishments in Mysore, Chamarajanagar, Coorg and Hassan Districts in the State of Karnataka. The 2nd respondent by consent order dated 31.07.2013 had renewed the consent given to the appellant for a period till 30.06.2012. However, the said consent had been granted by the 2nd respondent to the appellant to collect bio-medical waste from the health care establishments in Mysore, Chamarajanagar and Coorg Districts only. The authorization granted by the 2nd respondent under the Bio-Medical Waste Rules,1998 was also extended till 30.06.2015 vide its letter dated 09.10.2012.
25. The 5th respondent had applied for obtaining consent from the 2nd respondent to establish a CBWTF on 12.03.2012 in furtherance of which an inspection of the 28 proposed project site was conducted by the Regional Officer. The 2nd respondent after duly complying with the procedures established under law granted consent dated 24.11.2012 to the 5th respondent to establish a CBWTF for collection, reception, transportation, treatment and disposal of bio-medical waste generated in the districts of Mysore, Coorg and Chamarajnagar. Aggrieved by the consent to establish the CBWTF issued by the 2nd respondent, the appellant approached the Appellate Authority to set aside the consent order dated 24.11.2012 and by the order dated 20.04.2013 the said Appellate Authority dismissed the appeals filed by the appellant and hence, the appellant has approached this Tribunal for relief. The following are some of the shortfall observed by the respondent, KSPCB authorities:
a. Operational shortfall regarding collection of wastes from the health care establishments. b. Shortfall during transportation of waste in respective colour coded containers and washing of vehicles used to transport bio-medical waste. 29 c. Shortfall during treatment of bio-medical wastes, effluent generated during the treatment of the bio- medical waste.
d. There were complaints from the health care establishments for not collecting bio-medical wastes in time and storage of the same beyond the time laid down in schedule leading to air pollution. e. The bio-medical wastes were disposed in municipal dustbins and in landfill sites.
26. Initially, since the appellant was a newly established facility, the respondents had discussed the same with the appellant and had instructed them to rectify the same at the earliest. When the complaints were received continuously the second respondent had issued notices on several occasions. Apart from that, the CPCB had also issued directions under section 5 of the EP Act, 1986 on 04.04.2008 for non-compliance. As regards the averments that the appellant was not given an opportunity of being heard, the respondents are not bound to consult with the appellant and that the appellant does not have a right of being heard. The Bio-Medical Waste (Management and Handling) Rules,1988 have been framed under the E P Act, 30 1986 and as per rule 14 of the said rules, the Municipal Corporations, Municipal Boards or Urban, Local Bodies shall be responsible for providing suitable common disposal/incineration sites for the bio-medical wastes generated in the area under their jurisdiction, it shall be the responsibility of the occupier generating bio-medical wastes/operator of a bio-medical waste treatment facility to arrange for suitable sites individually or in association so as to comply with the provisions of these rules. Rule 14 clearly states that each and every local body shall provide bio- medical treatment facility in each and every district and no where it is stated that a single operator of the facility shall cover four districts. The object and scheme of the rules is to have a common disposal/incineration facility within the area of each Municipal Corporations, Municipal Boards or Urban, Local Bodies for treating the bio-medical wastes generated within the respective jurisdiction. The KSPCB had issued consent to the appellant to collect the bio-medical wastes from Mysore, Coorg, Hassan and Chamarajanagar districts. When an agency approached the 2nd respondent to establish a common treatment facility at Hassan district, it is 31 the responsibility of the KSPCB to provide the agency with requisite consent and authorization in accordance with the said rules. The KSPCB need not have to consult or provide the appellant an opportunity of being heard before permitting the common treatment facility at Hassan District. The respondents have not taken any step contrary to the Bio- medical Waste Rules. Rule 7(8) of the Bio-medical Waste (Management and Handling) Rules,1998 states that the authority may cancel or suspend the authorization, if the occupier has failed to comply with the provisions of the act or these rules and the reasons should be recorded. A reasonable opportunity of being heard must be granted before canceling or suspending the said authorization and the respondents had not cancelled the authorization nor suspended the authorization of the appellant. The proceedings initiated by the appellant herein is based on the guidelines of the CPCB with regard to the coverage area of the CBWTF. According to the guidelines in any area, only one CBWTF may be allowed to cater up to 10,000 beds at the approved rate by the prescribed authority. A CBWTF shall not be allowed to cater to the health care units beyond 32 a radius of 150 km. However, in any area where 10,000 beds are not available within a radius of 150 km, another CBWTF may be allowed to cater to the health care units situated outside the said 150 km. A plain reading of the said guidelines issued by the CPCB would clearly support the case of the respondents herein where it did not restrict the number of units to be established in a particular area or district. However, it gives the maximum number of beds that can be catered by the CBWTF. Further, it also prescribes the maximum radius in which the CBWTF can be operated. Therefore, the appellant has misrepresented the guidelines given by the CPCB to suit to his convenience. Any guidelines or notifications issued by a statutory authority shall reflect the objects and language of the acts and rules as the statutory authority could be deriving the powers to issue guidelines only as per the act and rules. Therefore, in the present case either in the EP Act, 1986, or in the Bio- medical Waste Rules, 1998 prohibit or restrict the respondents from establishing more than one CBWTF in a particular locality or any guidelines issued by the CPCB should be necessarily in consonance with the acts and rules. 33 Therefore, even assuming that the guidelines of CPCB restrict the number of CBWTF, the same has no legal basis and cannot override the act or rules and it would not bind the respondents.
27. The inspection report is prepared by the respondents based on the inputs that are provided by the appellant. As per the condition stipulated in the authorization, the operator of the facility, namely the appellant is required to furnish the requisite details every month in Form E, but the appellant did not submit the same periodically. The data provided by the appellant was not only irregular but also unreliable and highly approximate. (emphasis supplied). For non submission of the monthly returns in the prescribed form, the appellant was called for a personal hearing on 09.01.2013.
28. The total capacity of the CBWTF plant was subject to the quantity submitted by the appellant to the respondents and the statement regarding under-utilization of the plant was mentioned based on the misleading and fraudulent oral submissions of the appellant to the inspecting officers. The appellant does not have any locus standi to question or 34 comment on the contents of the feasibility report filed by any applicant, i.e., in this case the 5th respondent. The feasibility report submitted by the 5th respondent to the respondents/KSPCB was considered along with the World Health Organization report and other available information published above as well as from the CPCB. The quantity submitted as per the list of health care establishments in Mysore, Chamarajanagar and Coorg Districts is correct. Hence, the statement of the appellant regarding projection being imaginary and inflated by the officials of the KSPCB cannot be accepted. The total quantity of bio-medical waste generated as per the records of the KSPCB in 21 healthcare establishments on the basis of the inspection made on 18th to 21st of December 2012 was 1230.87 kg/day and as per the records submitted by the appellant it was only 579.10 kg/day. This would indicate that the appellant is not collecting the entire bio-medical waste or not quantifying the same as per the authorization conditions. The submission of low quantities to show that his facility is operating on lower capacity to avoid establishment of additional facility. The CBWTF of the appellant was inspected by the District 35 Administration on 17.03.2013 and observed that the bio- medical wastes were collected and stored in an unscientific manner, the operator of the facility was not practicing colour codes for storing bio-medical waste and all categories of wastes were stored in one container, the incinerator was not in operation and there was no record in the facility about the regular operation of the incinerator, information on collection, quantity and disposal of bio-medical waste was not available in the facility, even the staff of the facility were unable to furnish any information on the same, the employees of the facility have not been provided with safety equipment and safety systems as per rule and over all the CBWTF was not operating as per the Bio-medical Waste Management Rules,1998 and as per in the information gathered from the officials present at the time of inspection, that the operator of the facility is collecting exorbitant fees from the health care units and he is not collecting the bio- medical wastes from number of clinics.
29. A notice was issued to the appellant on 19.03.2013. There is no rule or regulation restricting the 36 respondent/KSPCB to take action on an application for issuing consent for establishment. The appellant is trying to bring out a fictitious link between the dates and events and wants to base its case on fiction. Whenever of the officers of the 2nd respondent inspected the health care units, there were oral complaints regarding non-collection of the bio- medical wastes within the stipulated time thereby the intervention of the 2nd respondent was required by the health care units. When an analysis wad made from the effluent and emission samples collected, the values of the BOD and COD of the treated effluent and particulate matter and acid mist from the emission exceeded the stipulated standard and notices in that regard were sent to the appellant. The respondents have replied in detail to the letter dated 22.10.2012 issued by the CPCB in letter dated 04.12.2012 explaining the reasons for considering the establishment of CBWTF. The consent for establishment for the CBWTF was issued in accordance with sections 25 and 21 of the Water and Air Acts and the proponent of the facility cannot start collecting waste from the health care establishments before establishing the facility and the respondents have not issued 37 any authorization for the said facility under Bio-Medical Waste (Management and Handling) Rules, 1998. The capital invested and manpower employed for establishing and operating the CBWTF is a normal requirement and the appellants were not compelled in any way to establish the same. There is enough scope for establishing additional facility since Mysore is projected as health city which is leading in establishment of new hospitals, multi-speciality hospitals and clinics contributing enormous quantity of bio- medical wastes which need proper treatment for which additional facility is required. As per the present scenario, the common treatment facility operated by the appellant is not collecting the bio-medical wastes from all the healthcare units, and the bio-medical wastes are not being collected from all the units with whom agreement is entered with. The consent was issued to the 5th respondent only after considering the suitability of site in accordance with the guidelines. There were many complaints received by the respondents both oral and written against the appellant and the respondents have also issued show cause notice to get suitable replies from the appellant. The Water and Air Acts 38 provide only maximum time limit for processing the application but not any minimum time limit. The time taken for processing the application depends upon various factors like pending applications, direction of location to be inspected. Since there is no specific rule preventing the respondents to process the application in short time, the allegation of the appellant in this regard is fictitious and imaginative. The requirement for establishing a second CBWTF arose because of inefficiency of the appellant and not due to any statement made by a representative of an NGO and the 3rd respondent had not misused the Lok Adalat proceedings and the 2nd respondent had issued the consent for establishment of additional facility after carefully examining and complying with the provisions of the Bio- Medical Waste (Management and Handling) Rules,1998 and not merely on the feasibility report filed by the 5th respondent, the 2nd to 4th respondents herein are regulatory authorities and issued the consent for establishment to the 5th respondent on its making an application and the same was issued considering all scenario for scientific handling of bio-medical wastes within the frame work of rules and the 39 respective Acts. The question of getting feasibility report from a third party did not arise. The appellant has not been discharging its functions efficiently and has been portraying as if functioning "under capacity" when the facts and figures suggest that the appellant has not been picking up the bio- medical wastes from all the health care units as required to be done by the appellant. The 2nd respondent has taken a policy decision not to allow the operation of captive incineration within the city limits in order to ensure emission regulations and the 2nd respondent has issued the consent for establishment of additional facility only after considering additional quantity of bio-medical waste generation and upcoming health projects and for scientific management of bio-medical wastes. Similarly, consent for establishment of additional facilities was given in Bangalore. The order dated 20.04.2013 passed by the 1st respondent is a detailed order and has dealt with all the applicable acts, rules, regulations and guidelines.
30. Hence, the 2nd, 3rd and 4th respondents seek to dismiss the appeals.
40
31. The 5th respondent would state in reply that the appellant has approached the Tribunal based on an erroneous reading of the statutory provisions and by misconstruing the rules, regulations and guidelines and is not entitled to any relief in law or equity. With the dismissal of the appeals filed by the appellant before the Appellate Authority and confirming the impugned order passed by the 2nd respondent in No.PCB/SEO/Eo/258/BMW/2512/909 dated 24.11.2012, consent was granted for the establishment of CBWTF at Sy.No.82, Guggegoudanapura village, Jayapura Hobli, Mysore Taluk and District by the 5th respondent for collection, reception, transportation, treatment and disposal of bio-medical waste and the appellant has no locus standi to challenge the grant of Consent to Establish as no vested right of the appellant is infringed.
32. In exercise of the powers conferred by sections 6, 8, and 25 of the E P Act, 1986, the Central Government has notified the rules for the management and handling of bio- medical waste under the Bio-medical Waste (Management 41 and Handling) Rules, 1998. The rules read with the provisions of the EP Act, 1986 comprehensively regulate the management and handling of the disposal of bio-medical waste. The EP Act, 1986 is a beneficial regulatory enactment for the protection and improvement of the environment and prevention of hazards to human being, other living creatures, plants and property with the objective to create harmony between development and protection of the environment. The Bio-medical (Management and Handling) Rules, 1998 comprehensively provide for all aspects relating to segregation, packing, generation, collection, reception, storage, transportation, treatment, handling and disposal of bio-medical waste. The acts and rules framed thereunder are in furtherance of the objective of protecting and ensuring cleaner environment and is not a legislative enactment for the regulation of trade, business or commerce, Independent of the aims and objectives of the enactment. Any restriction placed on the establishment of a new bio-medical treatment facility must serve the object of the Act and facilitate the creation of efficient waste handling facility which will lead to a cleaner environment. All rules, 42 regulations and guidelines are formulated under the act and rules are to be read in conformity with the express intention of the Legislature as enacted in the Act and the provisions of Article 19(1)(g) and Article 301 of the Constitution of India.
33. The appellant has mistakenly interpreted the guidelines framed by the CPCB in the year 2003 as if they prohibit the establishment of any new CBWTF within a radius of 150 km of an existing CBWTF. The CPCB has formulated the guidelines by way of a CBWTF as an option as per para 2 in the introduction. While referring to the coverage area of a CBWTF the guidelines state as follows:
"D. Coverage area of CBWTF:
In any area, only one CBWTF may be allowed to cater upto 10,000 beds at the approved rate by the prescribed authority. A CBTF shall not be allowed to cater healthcare units situated beyond a radius of 150 km. However, in any area where 10,000 beds are not available within a radius of 150 km, another CBWTF may be 43 allowed to cater the healthcare units situated outside the said 150 km. "
34. A plain reading of the language used in the above guidelines does not in any way impose any prohibition or restriction on the setting up of a new CBWTF and that one facility may be allowed to cater up to 10,000 beds at the approved rate and that such facility shall not cater to the healthcare units beyond a radius of 150 km. The guidelines therein contain an exception which provide that another facility in any area where 10,000 beds are not available may be allowed to cater to the healthcare units beyond 150 km. The appellant seeks to construe the rules and guidelines in a manner which is against the text and language of the act, rules and guidelines framed thereunder. There is no restriction on the setting up of or establishing a new bio- medical waste handling facilities in the guidelines. Any law which seeks to restrict or prohibit any occupation, business, trade or commerce must be explicit and in conformity with the Constitutional provisions. It is settled position in law that apprehension that the profitability or economic viability of a 44 private enterprise is likely to be reduced by competition is no ground for the authorities to consider in ensuring the fundamental right of all the citizens under Article, 14 and 19 and the right under Article 301 of the Constitution of India. While the general rule of freedom of trade as enunciated in Article 301 of the Constitution may be subject to restrictions as imposed by law by Parliament and by State Legislature and no restriction could be imposed by executive action. The construction sought to be put by the appellant would operate and restrict the right of all citizens to establish and carry on any business, trade and commerce directly in violation of Article 14, 19 and 301 of the Constitution and would create an impermissible monopoly in favour of the applicant. No barriers for entry are contemplated by the act or the rules and neither can monopolies be created by construing the rules to prohibit the establishment of new waste disposal facilities in conformity with the prescribed rules and regulations which would satisfy the standards and parameters laid down thereunder. The application of the 5th respondent herein for consent to set up a CBWTF as per the standards and specifications prescribed is in conformity with 45 the law and the authorities have accepted the same and have given consent as contemplated under the acts, rules and guidelines and the appellant cannot abuse the process of law and permitted to create a monopoly at the cost of efficiency and public interest in violation of law.
35. The KSPCB vide Notification No. KSPCB/CE2/EO/ BMW /CBWTF/Notification/2012-13/1288 dated 18.03.2013 has notified that the authorization and consents issued by the KSPCB so far is hereby amended without service area mentioned therein for all the common bio-medical waste treatment facilities in Karnataka. The contention of the appellant has been made without reference to the KSPCB notification issued and in force as on today and the applicant is seeking a relief which would be in violation of the laws, lead to restriction on competition, lead to inefficiencies, create vested interests in perpetuating exploitation at the final cost to the public and set up illegal barriers to carrying on the business, trade and commerce. The interpretation of the appellant in regard to the creation of monopoly right sought to be made by the appellant is also against the 46 provisions of the Karnataka Transparency in Public Procurements Act, 1999 and rules framed thereunder.
36. The appellant by way of these appeals cannot seek to make a new law nor claim rights not contemplated by the act, rules and guidelines thereunder. The act of the 2nd respondent in allowing the establishment of a new CBWTF at Hassan within 150 km of the appellant's CBWTF is in conformity with the law and the appellant has not challenged the same. The state of affairs in the disposal of bio-medical waste in Karnataka as evidenced by the Lok Adhalat proceedings presided by the sitting Judge of the Hon'ble High Court of Karnataka further support the requirement of more CBWTF to improve efficiency and better service in the waste disposal. The averments in the memorandum of appeal regarding the proceedings before the Hon'ble High Court Legal Services Committee at the regional Lok Adhalat at Mysore are inappropriate and show a contemptuous lack of respect and disregard for the sanctity of the proceedings before the Hon'ble High Court Legal Services Committee at the regional Lok Adhalat at Mysore. The allegations are 47 prima facie false, factually incorrect and the appellant by misrepresentation is seeking to abuse the process of law before the Tribunal. The appellant cannot hinder the function of the statutory authorities in accordance with law or deny the rights of any person under Article 14, 19 and 301 of the Constitution and the provisions of the E P Act, 1986 and the Bio-medical Waste (Management and Handling) Rules, 1998 and other statutory enactments.
37. Therefore, the KSPCB has acted in accordance with law in issuing Consent to Establish a CBTWF to the respondent No. 5 and the Appellate Authority has rightly upheld the same, dismissing the appeals of the appellant herein before it, in conformity with law. Hence, the 5th respondent seeks to dismiss the appeals on hand. The learned counsel for the 5th respondents relied on the following judgments of the Hon'ble Supreme Court of India in support of his contentions:
(i) 'The Nagar Rice and Flour Mills vs. N.T. Gowda (1970 (1) SCC 575) ;
(ii) State of Rajasthan Vs. Mohal Lal Vyas (1971 (3) SCC
705).
48
38. The 6th respondent, the CPCB, who was impleaded in the appeals by an order dated 03.02.2014 of the Tribunal in these appeals states in his reply affidavit that the CPCB had received a representation from the appellant vide letter No. Nil dated 08.10.2012 requesting the 6th respondent to issue directions to the 2nd respondent for not allowing more than one Common Bio Medical Waste Treatment and Disposal Facility in small cities in compliance of the provisions of the CPCB guidelines regarding coverage area of the CBWTF and the 6th respondent vide letter F.No. B-31033 (BMW)/30/93/HWMD/3236 dated 22.10.2012 requested the KSPCB to examine the issues raised by the appellant in the light of Bio-Medical Waste (Management and Handling) Rules, 1998 as amended and CPCB guidelines and to submit the action taken report. The KSPCB vide letter No. PCB/SEO/EO/F-CBWTF(II)/BMW/2012/766 dated 04.12.2012 had informed that they had observed serious irregularities in operating and management of CBWTF of the appellant as detailed below:
49 Karnataka State Pollution Control Board had authorised the CBWTF of the appellant to cater services to the member health care facilities located in the districts, namely, Mysore, Coorg and Chamarajanagar of Karnataka considering that there was no other facility in the area.
As per the inspection carried out by their Regional Officer, Karnataka State Pollution Control Board, Mysore on 18.07.2012, it was observed that the appellant's CBWTF was not lifting the bio-
medical waste on regular basis from the member health care facilities of the three districts, which is a serious violation of BMW rules.
Upon hearing the discussion for setting up of a new CBWTF, the Lok Adalat had directed Karnataka State Pollution Control Board and Regional Commissioner to find a way out and means of giving permission 50 to such units which are prepared to put their plants.
Non-lifting of bio-medical waste regularly by the appellant's CBWTF resulted in receipt of complaints from local health care facilities and which were taken into consideration for allowing the 5th respondent's CBWTF at Mysore. Further, the bio-medical waste generated by the member health care facilities should reach the CBWTF within 48 hours as per the provisions of BMW rules.
39. The 2nd respondent also informed that the actions initiated by their Board are in compliance to the directions issued by the Lok Adalat constituted by the Hon'ble High Court of Karnataka. Accordingly, the KSPCB initiated action to permit new CBWTF by the 5th respondent as the CBWTF operated by the appellant is not coping up with the demand of the existing member health care facilities.
40. With regard to the coverage area of the CBWTF, Clause D of the CPCB guidelines for CBWTF stipulates that: 51
"Ïn any area, only one CBWTF may be allowed to cater upto 10,000 beds at the approved rate by the prescribed authority. A CBWTF shall not be allowed to cater to the health care units beyond a radius of 150 km. However, in any area where 10,000 beds are not available within a radius of 150 km, another CBWTF may be allowed to cater to the health care units situated outside the said 150 km. "
41. The CPCB guidelines for CBWTF have been formulated with an aim to ensure effective storage, collection, transportation, treatment and disposal of bio-medical wastes and also to ensure that the CBWTF is located as near to its area of operation as possible so as to minimize the travel distance in waste collection and to minimize the time taken between generation to disposal of waste, thus enhancing its operational flexibility. The location shall be decided in consultation with the State Pollution Control Board/Pollution Control Committee. As per the Bio-medical Waste (Management and Handling) Amendment Rules, 2000, the local authorities are made responsible for providing suitable 52 sites within their jurisdiction. The multiple facilities in close vicinity may lead to unhealthy competition among the operators and result in non viable techno-economic feasibility of CBWTF for disposal of bio-medical waste and this would ultimately affect the quality service for bio-medical waste disposal in accordance with the BMW rules by the CBWTF. The CPCB has, therefore, addressed all the State Pollution Control Board/Pollution Control Committees in the country to follow the provisions of the aforesaid CPCB guidelines with regard to the location and coverage area of CBWTF while granting clearances for new proposals. Further, in view of the draft modification of the Bio-medical Waste (Management and Handling) Rules, 2011, the CPCB has initiated the process of revising the existing guidelines for setting up of CBWTF which is not yet finalized. Hence, the statement made by the appellant on draft Bio-medical Waste Rules, 2011 is not correct.
42. As seen above, both the appeals challenge a common judgment made by the Appellate Authority at Bangalore dismissing the appeals preferred by the appellant in Appeal 53 Nos. 48 and 49 of 2012 whereby an order dated 24.11.2012 issued by the 2nd respondent/KSPCB in favour of the 5th respondent under Water Act and Air Act to establish a CBWTF for collection, reception, transportation, treatment and disposal of bio-medical waste generated in the districts of Mysore, Coorg, and Chamrajanagar at Sy.No.82, Gajjegowandapura village, Jaiypura Hobli, Mysore Taluk and District.
43. The only question that would arise for determination in these appeals is: whether the common judgment dated 20.04.2013 of the Appellate Authority is liable to be set aside for all or any of the reasons putforth by the appellant herein. Pending the appeals, two miscellaneous applications were made by the appellant to add the Member Secretary, CPCB, New Delhi as a party respondent and after hearing both sides those applications were allowed. The Member Secretary, CPCB, New Delhi was added as 6th respondent who was given an opportunity to file a reply.
44. Advancing the arguments on behalf of the appellant, the learned counsel would submit that the appellant is the 54 proprietary concern who approached the authorities and applied for setting up a CBWTF. On scrutiny of the application and on inspection of the site for the proposed facility to be erected, the KSPCB by an order dated 02.05.2011 has issued a consent order to establish the CBWTF under the Water and Air Acts at Sy.No.25 of Varuna Village in Mysore. Pursuant to the consent, the appellant established the plant after completing the construction in the year 2002 and from the very beginning the appellant was collecting bio-medical waste from all the four districts of Mysore, Coorg, Hassan and Chamarajanagar regularly without any default and the same has been disposed of in a scientific manner as per the guidelines of the KSPCB. The appellant was given the consent orders for the last 10 years without any hindrance or any allegations from any quarter including hospitals, clinics, nursing homes etc., from all the four districts till the year 2010.
45. Without giving any opportunity of being heard and without consulting the appellant, the consent order was restricted to only to three districts viz., Mysore, 55 Chamarajnagar and Coorg thereby excluding the Hassan District. The appellant did not challenge the same.
46. The appellant was given the consent from for a period between 01.07.2012 to 30.06.2015 under the E P Act, 1986. Equally, the consent was issued by the respondent/KSPCB as per the Consent Order No. PCB/Shree Consultants/BMW 2012/757 dated 09.10.2012 for a period 01.07.2012 to 30.06.2013 under the Water Act and Air Act. Before issuing the consent order, the authorities of the regional office of the 2nd respondent made necessary inspection. As per the inspection report dated 18.07.2012, the appellant CBWTF has the capacity to treat and dispose of the bio-medical waste of 12,000 to 15,000 beds. However, presently the CBWTF of the appellant is getting the bio-medical waste from around 5000 beds only from all the three districts. Similarly, in the said inspection report, the inspecting officer has referred to the incinerable waste of 10,000 kg per month, i.e., 333 kg per day. The capacity of the appellant's CBWTF is 100 kg per hour and it is now working only 3-4 hours per day. By working in three shifts of 8 hours in a day, 56 the unit can cater upto 2400 kg of incinerable waste per day. Accordingly, the appellant is not running his CBWTF plant even to 3 to 4 hours per day and the appellant is running the CBWTF "under capacity". Apart from that, the above collection of bio-medical waste is hassle free and on regular basis and till today there were no complaints against the appellant's CBWTF unit.
47. While the matter stood thus, a proposal was mooted in March, 2012 for the establishment of a second CBWTF in Mysore. A letter dated 25.04.2012 was addressed by the third respondent, Senior Environmental Officer to the 4th respondent, Environmental Officer directing the 5th respondent to submit a feasibility report which was submitted in a casual manner to the 2nd and 3rd respondents. It did not disclose the correct factors and figures. But, inflated figures were furnished in order to make believe that the capacity of the appellant's CBWTF was not sufficient and one more CBWTF is needed at Mysore. The figures found therein were imaginary and inflated which were intended to suit to the convenience of the 5th respondent. A 57 discussion that took place at Lok Adhalat of the Hon'ble High Court of Karnataka in its proceedings dated 02.05.2012 wherein a representation was made to establish CBWTF within 50 to 60 km of all the places which generate bio- medical waste was taken advantage as if it was a permission given for establishing of one more CBWTF. The 5th respondent applied to KSPCB, Mysore on 12.03.2012 and the inspection of the authorities was made on the same day. The said application was forwarded on 13.03.2012. The 3rd respondent directed the 4th respondent to submit feasibility report on 25.04.2012. Following the same, the recommendations were made to the 2nd respondent to issue Consent to Establish for CBWTF at Gajjegowdanapura village, Jaiypura Hobli in Mysore Taluk and District which is 25 km from the appellant's CBWTF.
48. In order to overcome the deficiency, the 3rd respondent has stated in the communication dated 18.10.2012 that there were oral complaints against the appellant. Thus, making it as a device against the appellant's CBWTF which has been carrying on its obligation to the satisfaction of all. 58 At no point of time, the CPCB has received any complaints from any quarter for the past one decade. In fact, the CPCB has appreciated the work of the appellant in maintaining the CBWTF unit. The District Health Officer, Mysore in his reply dated 05.07.2012 addressed to the Deputy Commissioner, Mysore informed that the appellant's CBWTF is carrying ion its activities scientifically and they have not found the bio- medical waste stored more than 48 hours. Added further the learned counsel, that aggrieved by the action of the 2nd to 4th respondents in issuing the impugned consent for establishment of another CBWTF on 24.11.2012 in favour of the 5th respondent under Water and Air Acts filed two appeals before the Appellate Authority. In course of the hearing, the appellant filed application to implead the CPCB as a party since the question with regard to the guidelines framed by the CPCB was an issue. But, the said application was dismissed on unsustainable grounds. It is a fresh contention of the counsel for the appellant that the CPCB is a statutory body formed even prior to coming into force of the E P Act, 1986 and now it operates as a technical wing of the MoEF. With regard to the coverage area, the CPCB 59 guidelines as they existed in 2003 clearly prescribes that in any area only one CBWTF may be allowed to cater upto 10,000 beds. It also prescribes that where 10,000 beds are not available within a radius of 150 km, another CBWTF may be allowed to cater the health care units situate outside 150 km. The draft revised guidelines of the CPCB have not been made a part of Bio-medical Waste Management Rules and draft gazette notification has not been issued in which the amended rules were brought in force. The consistent interpretation of the guidelines regarding the coverage area of CBWTF is to permit only one unit in a radius of 150 km is fortified by all the subsequent revised guidelines. Even assuming that the 5th respondent can raise an issue as to whether the CPCB guidelines are mandatory in the manner of granting consent by KSPCB, it is not open to the KSPCB or any other pollution control authorities in India to disregard the guidelines of the CPCB as they are binding force on them. The CPCB guidelines have been framed after consultation with all State Pollution Control Boards. The unit of the 5th respondent is proposed to be located within 40 km from the appellant's CBWTF. The inspection report relating 60 to the appellant's unit in July, 2010 just prior to grant of renewal of consent and approval shows that the appellant's CBWTF has the capacity of 12,000 beds, at present covering 5000 beds per day. The report also states that the quantum of incinerable waste generated is only 10,000 kg per month which is approximately 333 kg per day. Contrarily, the feasibility report submitted by the 5th respondent in 3/2012 for grant of consent shows as though 5000 kg per day of bio-medical waste was being generated which is not only far from truth but also did not categorize any waste as per rules as incinerable, autoclave value etc., in order to arrive at a correct figure. The report also falsely claims that there were 8000 beds. The complaint made by the appellant on 08.10.2012 to the MoEF and also directly to the KSPCB on 11.10.2012 were not considered. The CPCB in the letter dated 22.10.2012 addressed to the 2nd respondent calling for an action taken report based on the representation of the appellant objecting to the 2nd CBWTF and directing to follow the Bio-Medical Waste (Management and Handling) Rules, 1998 and the CPCB guidelines were ignored by the KSPCB, the KSPCB proceeded to grant consent to the 5th 61 respondent for the establishment of CBWTF. By allowing the establishment of one more or many CBWTF, the whole objective would be defeated. The KSPCB has also failed to consider individual merits of the proposal of the 5th respondent for setting up one more CBWTF independently with reference to the statutory rules and CPCB guidelines. On the contrary, unnecessary references have been made to unrealistic data produced by the 5th respondent. The CPCB guidelines have been made mandatory and made part of the rules of 2011. Relying on the revised draft guidelines of the CPCB published in February 2014 regarding the coverage area, the counsel would submit that the consent granted in favour of the 5th respondent was against the guidelines. The guidelines of the CPCB have a binding nature and have force. The CBWTF can be established in any State or Union Territory only if a unit is set up and operated as per the specifications prescribed by the CPCB with regard to location, technical equipments, coverage area etc. Hence, the KSPCB cannot maintain that they followed the guidelines of the CPCB with regard to all specifications, but no with regard to the coverage area. 62
49. Assailing the impugned judgment of the Appellate Authority, the learned counsel for the appellant herein would submit that the Appellate Authority did not consider the scheme of Bio-medical Waste (Management and Handling) Rules, 1998 which explained the need for a CBWTF before concluding that the KSPCB has all the authority to decide whether one or more CBWTF can be allowed in the same area. The draft amendment to the rules of 2011 that have made the CPCB guidelines as part of the rules with clarity on coverage area of each CBWTF, was consciously ignored by the Appellate Authority in spite of the appellant bringing the same to the notice by filing an affidavit. Unnecessary reference to the proceedings before the Lok Adhalat of the Hon'ble High Court of Karnataka which gave general directions without considering any rules and regulations governing the field which were relied on by the Appellate Authority. The Appellate Authority did not even consider the objection of the appellant that the Lok Adhalat proceedings was a ruse to grant consent to the 5th respondent. The Appellate Authority did not consider the specific direction from the CPCB as contained in its letter dated 25.03.2013 63 addressed to all the State Pollution Control Boards regarding coverage area of CBWTF. The Appellate Authority did not approach the issue as per the existing rules. Instead, it considered the issue as if it was a challenge to the CPCB guidelines. The 5th respondent cannot be heard to argue the Article 19(1) (g) of the Constitution of India regarding his freedom to do business in any area without challenging the rules or guidelines which have to be followed. Thus the impugned order of consent to establish dated 24.11.2012 granted to the 5th respondent is against the spirit of the Bio- medical Waste (Management and Handling) Rules, 1998 read with the guidelines issued by the CPCB and thus by looking from any angle the impugned order dated 24.11.2012 for consent to establish granted to the 5th respondent cannot stand. Hence, the appeals have got to be allowed by setting aside the order of the Appellate Authority.
50. Countering the above contentions, the 2nd respondent/KSPCB would submit that the MoEF, in exercise of powers conferred under sections 6, 8 and 25 of the EP Act, 1986, framed Bio-medical Waste (Management and 64 Handling) Rules, 1998 which have already come into force and these rules shall be applicable to all those who are responsible for generation, collection, receiving, storage, transportation, disposal and handling the bio-medical wastes in whatever form. The rule 14 makes it clear that it is the responsibility of the Municipal Corporations and local bodies etc., to provide suitable incineration plants. For the bio- medical wastes generated outside the jurisdiction of the local bodies, it is the responsibility of the occupier to arrange for suitable sites. When the rules are framed under the EP Act,1986, they have to prevail over any other guidelines. It is for the KSPCB to decide as to how the BMW should be disposed of and as such the KSPCB has power to decide on the number of operators necessary for the job. Under rule 14 of the Bio-medical Waste (Management and Handling) Rules, 1988, no one can claim any exclusive right to operate CBWTF in any particular area and that the appellant cannot claim monopoly. The KSPCB has taken a policy decision to permit the setting up of several CBWTF in all the districts keeping in view the public interest to improve the quality of service in collection, reception, storage, transport, treatment 65 and disposal of the bio-medical waste. Merely because the appellant was given the consent to operate in 3 districts, it would not confer any absolute right on the appellant and the appellant cannot prevent the KSPCB from granting consent to others. Hence, the judgment of the Appellate Authority has got to be sustained and the appeals have to be dismissed.
51. The learned counsel for the 5th respondent, in his earnest attempt to sustain the judgment of the Appellate Authority would submit that the appeals are not maintainable either in law or on facts. The EP Act, 1986, a beneficial regulatory legislation was enacted for the protection and improvement of environment and prevention of hazards to human being, other living creatures, plants and with an objective to create harmony between development and protection of the environment. The Bio-medical Waste (Management and Handling) Rules, 1998 comprehensively provide for all aspects relating to segregation, packing, generation, collection, reception, storage, transportation, treatment, handling and disposal of bio-medical waste. The 66 very object of the rules is to ensure a cleaner environment. The rules, regulations and guidelines have to be read in conformity with the express intention of the legislation and the provisions of Article 19 (1) (g) and Article 301 of the Constitution of India. The guidelines relied on by the appellant is to be read harmoniously and it did not in any way impose any restriction on the setting up of another CBWTF. It only provides that one facility may be allowed to cater 10,000 beds, but not beyond the radius of 150 km. Nowhere, in the provisions of the guidelines is there any restriction on the establishment of a new CBWTF. The powers conferred on the authority under the act is regulatory in nature for the purpose of carrying out the aims and objectives of the act and rules and does not empower the authorities to restrict the fundamental rights under Article 19 (1) (g) of the Constitution of India to carry on any occupation, trade or business or under Article 301 to impede the flow of trade and commerce. The 5th respondent made an application for consent to set up CBWTF as per the standards and specifications prescribed in conformity with law and rightly the authorities gave the consent. Nothing 67 wrong or illegality was committed by the KSPCB in granting consent to the 5th respondent. The appellant has approached the Tribunal on an erroneous reading of the statutory provisions and misconstruing the rules, regulations and guidelines. Pointing to the guidelines of the CPCB issued in the month of August, 2003 for bio-medical waste disposal under the Bio-medical Waste (Management and Handling) Rules, 1998 by way of a CBWTF as an option to dispose the bio-medical waste generated can also be treated at CBWTF. A plain reading of relevant portion of the guidelines for CBWTF does not in any way impose prohibition or restriction of setting up of a new bio-medical waste treatment facility or CBWTF. It only provides that one facility may be allowed to cater up to 10,000 beds at the approved rate and such a facility shall not be allowed to cater the healthcare units situated beyond a radius of 150 km. The guidelines therein itself contain an exception which provides that another facility in any area where 10,000 beds are not available may be allowed to cater to healthcare units beyond 150 km.
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52. The appellant sought to construe the rules and guidelines framed under in a manner which is contrary to the text and language of the act, rules and guidelines framed thereunder. The meaning given by the appellant to the works set out in the guidelines of the CPCB is perverse and unsustainable. Any law which seeks to restrict or prohibit any occupation, business, trade or commerce must be explicit and in conformity with the Constitutional provisions. The act, rules and guidelines for the CBWTF do not impose or contemplate any such restriction on the establishment of a new bio-medical waste treatment facility. The scheme of act, rule and guidelines framed thereunder are beneficial and regulatory and are not by way of legislature empowering the authorities to prohibit or restrict the establishing of business, trade and commerce. Creating more CBWTF would serve the object of the act and facilitate creation of more and efficient waste handling facilities which would lead to a cleaner environment. The interpretation and construction of powers of the regulatory authority must be reasonable and not in restriction of the freedom to carry on any occupation, trade or business or impede the flow of the 69 trade or business. It is settled position of law that apprehension that profitability or economic viability of a private enterprise is likely to be reduced by competition is no ground for a person to be aggrieved nor is it a ground for the authorities to consider in ensuring the fundamental right of all citizens under Article 14 and 19 of the Constitution and the right under Article 301 of the Constitution. It is also well settled position in law that while the general rule of freedom of trade as enunciated in Article 301 of the Constitution might be subject to restrictions, it can only be subject to the restrictions imposed by law by Parliament under Article 302 and 303(2), and State Legislature under Article 304 subject to the limitations prescribed by Article 302-304 of the Constitution, respectively. No such restriction could be imposed by executive action. If the contention putforth by the appellant is to be accepted, the same would operate and restrict the right of all citizens to establish and carry on any business, trade and commerce directly and immediately in violation of the freedom guaranteed under Article 14, 19 and 301 of the Constitution. Apart from that, it would create an impermissible monopoly of the appellant. The contention of 70 the appellant about the applicability of rule 7 and sub clause (8) of the Bio-Medical Waste (Management and Handling) Rules, 1998 is misplaced since the said provision has no application to the facts of the case. The act and rules do not contemplate the creation of monopoly in the setting up of bio-medical waste treatment facilities nor do they contemplate the creation of exclusive territorial rights. The appellant, by way of this appeal cannot seek to make a new law nor claim right not contemplated by the act, rules and guidelines thereunder. The act of the respondent/KSPCB in allowing the establishment of a new CBWTF at Hassan district which is within 150 km of the appellant's establishment is in conformity with law. It is pertinent to point out that the appellant has not challenged the same. The state of affairs in the disposal of bio-medical waste at Karnataka as evidenced by the Lok Adhalat proceedings presided by the sitting Judge of the Hon'ble High Court of Karnataka further supports the requirement of the competition to improve efficiency and better service in waste disposal without creating vested interest at the ultimate cost of the public. The act, rules and the guidelines should not be 71 construed to place obligation on the state authorities. Thus, the 2nd respondent/KSPCB gas acted in accordance with law in issuing the consent to establish a CBWTF in favour of the 5th respondent. The Appellate Authority has rightly upheld the same by dismissing the appeals of the appellant. Hence, the judgment of the Appellate Authority has to be confirmed and the appeals on hand before the Tribunal have to be dismissed.
53. The learned counsel appearing for the 6th respondent would submit that the 6th respondent had no knowledge about the appeals made by the appellant herein against the consent order granted by the KSPCB in favour of the 5th respondent. A representation was received from the appellant dated 08.10.2012 requesting issuance of direction to the KSPCB for not allowing more than one CBWTF in small cities in compliance of the provisions of the guidelines of the CPCB regarding coverage area of the CBWTF. In pursuance of the same, the 6th respondent by a letter dated 22.10.2012 requested the KSPCB to examine the issue raised by the appellant in the light of the Bio-medical Waste 72 (Management and Handling) Rules, 1998 and the guidelines of the CPCB and to submit the action taken report. The 2nd respondent/KSPCB by its letter dated 04.12.2012 had informed that they had observed serious irregularities in the operation and the management of the CBWTF of the appellant as detailed in the letter. From the letter it was clear that as per the inspection carried out by the Regional Officer of the KSPCB on 18.07.2012, it was observed that the CBWTF of the appellant was not lifting the bio-medical waste on a regular basis from the member-healthcare units of the 3 districts, which was a serious violation of the Bio- medical Waste (Management and Handling) Rules, 1998. It was also stated therein that upon hearing the discussion for setting up of a new CBWTF, the Lok Adhalat had directed the KSPCB and the Regional Commissioner to find a way out and means of giving permission to such units which were prepared to put up their plants. The non-lifting of bio- medical waste regularly by the appellant's CBWTF and the complaints received from local healthcare facilities were taken into consideration for allowing presently a new CBWTF by the 5th respondent. The Bio-medical waste 73 generated by the member-healthcare units should reach the CBWTF within 48 hours as per the provisions of the bio- medical waste management rules. The 2nd respondent informed that the action initiated by the KSPCB was in compliance with the direction issued by the Lok Adhalat constituted by the Hon'ble High Court of Karnataka and also the CBWTF operated by the appellant was not coping up with the demand of the existing member-healthcare units. The learned counsel would further add that the CPCB guidelines for CBWTF have been formulated with an aim to ensure effective storage, collection, transportation, treatment, and disposal of the bio-medical waste and also to ensure that the CBWTF is located as near to its area of operation as possible so as to minimize the travel distance in waste collection and also the consumption of time taken between generation and disposal thus enhancing the operational flexibility. The location shall be decided in consultation with the State Pollution Control Board/Pollution Control Committee. As per the Bio-medical Waste (Management and Handling) (Amendment) Rules, 2000, the local authorities are made responsible for providing suitable 74 site within their jurisdiction. It is true that the draft modification of the Bio-medical Waste (Management and Handling) Rules, 2011 is under process for revising the existing guidelines for setting up CBWTF. But, the same is not finalized. Any rule or guidelines which are in draft stage cannot be considered as final and hence the same cannot be relied. Hence, the 6th respondent/CPCB prays that he would abide by any order passed by the Tribunal.
54. On scrutiny of the entire materials made available, the following would emerge as admitted facts:
The appellant, a proprietary concern made an application for the establishment of a CBWTF. Consent for the establishment of the same was granted by the KSPCB by an order dated 02.05.2001 covering four districts in the State of Karnataka, namely, Mysore, Coorg, Hassan and Chamarajanagar. On completion of the construction of the CBWTF in the year 2002, Consent to Establish was granted by the KSPCB. The said consent has been renewed periodically. The said consent given to the appellant was restricted only to three districts viz. Mysore, Coorg and 75 Chamarajanagar excluding Hassan District by an order of the 2nd respondent/KSPCB in the year 2010 which has never been challenged by the appellant. The 5th respondent made an application to the office of the KSPCB at Mysore on 12.03.2012 and the said application was forwarded to the Head Office of the KSPCB on 13.03.2012. Pursuant to the direction given, the 5th respondent submitted a feasibility report on 25.04.2012. In a Lok Adhalat proceedings dated 02.05.2012 that took place before the Hon'ble High Court of Karnataka, a representation was made by an NGO that the CBWTF should be established within 50 to 60 km of healthcare units at all places and directions were issued to the authorities of the KSPCB by Lok Adhalat to look into the matter immediately. An inspection of the appellant unit was made on 18.07.2012. The appellant sent communications to the KSPCB and CPCB on 08.10.2012 and 11.10.2012, respectively raising objection to permit one more CBWTF alleging that it was contra to the guidelines. The KSPCB issued authorization to the appellant in respect of the above three districts, namely, Mysore, Coorg and Chamarajanagar under Bio-medical Waste (Handling and Management) 76 Rules, 1998 from 01.12.2012 to 30.06.2015. The consent which was given to the appellant was renewed under Water and Air Acts till 30.06.2018. The appellant placed a status report dated 11.10.2012 regarding the quantum of waste generated. The application filed by the 5th respondent for consent was recommended for approval by the concerned officer citing defects in the functioning of the appellant's unit along with the figures and data regarding the quantum of waste generated. The CPCB issued direction on 22.10.2012 to KSPCB to consider the representation of the appellant objecting to the establishment of CBWTF by the 5th respondent. The 2nd respondent/KSPCB granted the impugned consent order dated 24.11.2012 to the 5th respondent to establish one more CBWTF. Aggrieved over this, the appellant preferred two appeals before the Appellate Authority and also an application for impleading the CPCB in the proceedings. The Appellate Authority dismissed the impleading application. The CPCB issued a clarification on 25.03.2013 to the State Pollution Control Boards to take into account the fixed coverage area to each of the authorized CBWTF in case additional facilities were to 77 be allowed. The appellant submitted a copy of the clarification issued by the CPCB before the Appellate Authority. The Appellate Authority dismissed both the appeals as devoid of merits. Hence the present appeals are filed before the Tribunal.
55. The management of bio-medical waste has been a problem that has been recognized for many decades by the environmental engineers and the healthcare establishments. The bio-medical waste is generated during the diagnosis, treatment or immunization of human beings or animals or in research activities pertaining thereto or in the production or testing of biologicals. This may include wastes like sharps, soiled wastes, disposables, anatomical waste, cultures, discarded medicines, chemical wastes etc., It is pertinent to point out that this waste is potentially hazardous, the main hazard being infection and may pose a serious threat to human health if its management is indiscriminate and unscientific. It became necessary to pay much attention over the periods since the healthcare establishments were not giving due attention to their waste 78 management. The negligence on the part of the healthcare establishments became evident. Realizing the gravity of the issue, the CPCB issued notification of 'Bio-medical Waste (Management and Handling) Rules, 1998 which paved way for slow and steady streamlining of the process of waste segregation, collection, treatment and disposal. While the bio-medical waste is potentially hazardous and poses a serious threat to human health, it has to be taken serious note of from the point of view of protection of environment. This scenario has to be kept in mind while adjudicating the appeals on hand.
56. Apt and appropriate, it would be look to into the necessary provisions of the EP Act, 1986 and also the rules made thereunder which are necessary for disposal of the appeals. Paragraph 2 of the statement of objects and reasons of the EP Act, 1986 reads as follows:
"(2) Although there are existing laws dealing directly or indirectly with several environmental matters, it is necessary to have a general legislation for 79 environmental protection. Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances. Some major areas of environmental hazards are not covered. There also exist uncovered gaps in the areas of major environmental hazards. There are inadequate linkages in handling matters of industrial and environmental safety.
Control mechanisms to guard against slow, insidious build up of hazardous substances, especially new chemicals in the environment are weak. Because of the multiplicity of regulatory agencies, there is need for an authority which can assume the lead role for studying, planning and implementing long term requirements of environmental safety and to give direction to, and co-ordinate a system of speedy and adequate 80 response to emergency situations threatening the environment.
(3) In view of what has been stated above, there is urgent need for the enactment of a general legislation on environmental protection which inter alia, should enable co-ordination of activities of the various regulatory agencies, creation of an authority or authorities with adequate powers 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.
(4) The Bill seeks to achieve the above objects."
57. Section 6 reads as follows:
81"(1) The Central Government may, by notification in the official Gazette, make rules in respect of all or any of the matters referred to in section 3.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters:
a) The standards of quality of air, water or soil for various areas and purposes;
b) The maximum allowable limits of concentration of various environmental pollutants (including noise) for different areas;
c) The procedures and safeguards for the handling of hazardous substance;
d) The prohibition and restrictions on the handling of hazardous substances in different areas;
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e) The prohibition and restrictions on the location of industries and carrying on the processes and operations in different areas;
(f) The procedures and safeguards for the prevention of accidents which may cause environmental pollution and for providing for remedial measures for such accidents."
58. Section 8 reads as follows:
"Persons handling hazardous substances to comply with procedural safeguards: No person shall handle or cause to be handled any hazardous substance except in accordance with such safeguards as may be prescribed."
59. From a reading of the statement of reasons and objects and also the provisions of the EP Act, 1986, it would be quite explicit that the Act came to be passed as a beneficial 83 regulatory enactment for improvement of environment and protection from hazards to human beings, other living creatures, plants and property along with the objective to create a harmony between development and protection of environment.
60. In view of section 25 of the EP Act, 1986 empowering Central Government to make rules for the purpose of carrying out the Act, the Bio-medical Waste (Management and Handling) Rules, 1998 were framed which comprehensively provide for all aspects relating to segregation, packing, generation, collection, reception, storage, transportation, treatment, handling and disposal of the bio-medical waste.
61. The CPCB formulated a set of guidelines for the CBWTF. The heading 'D' in the guidelines speaks on the coverage area of CBWTF which reads as follows:
" D. Coverage area of CBWTF:In any area, only one CBWTF may be allowed to cater upto 10,000 beds at the 84 approved rate by the prescribed authority. A CBWTF shall not be allowed to cater healthcare units situated beyond a radius of 150 km. However, in any area where 10,000 beds are not available within a radius of 150 km, another CBWTF may be allowed to cater the healthcare units situated outside the said 150 km".
62. Placing much reliance on the above part of the guidelines of the CPCB on the coverage area of the CBWTF, it is contended by the appellant's side that the entire process of consideration of the application and grant of consent for one more CBWTF was not only contrary to the guidelines of the CPCB but also illegal. From a plain reading of the guidelines in respect of coverage area of CBWTF as above, it would be clear that (a) only one CBWTF may be allowed to cater upto 10,000 beds at the approved rates by the prescribed authority (b) the said CBWTF shall not be allowed to cater to the health care units 85 situated beyond a radius of 150 km and (c) in any area where 10,000 beds are not available within the radius of 150 km, another CBWTF to cater to the health care units situated outside the radius of 150 km. Pointing to the above guidelines, it is vehemently contended by the appellant's side that the appellant was granted consent to operate the CBWTF in three districts of Mysore, Coorg and Chamarajanagar which are situate within a radius of 150 km and hence granting of one more consent to establish another CBWTF by the 5th respondent was contrary to the guidelines. On the contrary, the 5th respondent in whose favour the impugned consent order has been given would argue that, the 2nd respondent/KSPCB was perfectly correct and legal in granting the consent in favour of the 5th respondent since the guidelines did not impose any restriction or prohibition on setting up a new BWTF or a CBWTF.
63. The contention putforth by the appellant's side that the issuance of the impugned consent order in favour of the 5th respondent was violative of the acts, rules and guidelines of 86 the CPCB cannot be countenanced for more reasons than one. As stated above, the EP Act, 1986 was enacted. In exercise of the powers and the Central Government notified the Bio-medical Waste (Management and Handling) Rules, 1998. Though the said rules read along with the provisions of the EP Act, 1986 comprehensively regulate the management, handling and disposal of the bio-medical waste, they do not speak about the coverage area of the CBWTF. The guidelines for CBWTF were formulated in the year 2003 by CPCB in order to regulate the establishment and regulation of CBWTF. Thus, they are only regulatory or recommendatory and not mandatory. Hence, the contention of the appellant that consent given in favour of the 5th respondent for the establishment of one more CBWTF was in violation of the CPCB guidelines cannot be sustained. Neither the EP Act, 1986 nor the Bio-medical Waste (Management and Handling) Rules, 1998 restricts or prohibits the Pollution Control Board from establishing more than one CBWTF in a particular locality. Needless to say, the guidelines issued by the CPCB should necessarily be in accordance with the acts and rules. Hence, though the 87 guidelines of the CPCB restrict the coverage area, the same cannot have a legal basis nor force since they are only regulatory and not mandatory.
64. The words employed 'another CBWTF may be allowed to cater the health care units' would clearly indicate that it is an exception which provides that another facility can be established in the very same area. But, it would add that if 10,000 beds are not available, the 2nd unit might be allowed to cater to the health care units beyond the radius of 150 km. The appellant cannot be allowed to assail the impugned consent order in view of the following facts and circumstances attendant in the instant case:
65. Pointing to the inspection report of the Environmental Officer, KSPCB, RO-1, Mysore Urban as found in page Nos. 70-74 of the Compilation No.2- Volume 1 of the Type Set filed by the respondents, the learned counsel for the appellant would submit that the said inspection was made just prior to the grant of renewal of consent to the appellant and the same would show that the appellant's CBWTF has the capacity to cater to 12,000 beds and at the time it 88 covered 5000 beds per day and also the quantum of incinerable waste generated was 10,000 kg per month which is approximately 333 kg per day. The counsel for the appellant would urge that there was no need to establish any more CBWTF since it was not supported by any material on record apart from the fact that the appellant's CBWTF is running below the required capacity. It was added further by the counsel that there are no allegations or complaints whatsoever from any quarter including hospitals, clinics, nursing homes etc., in the three districts.
66. On the contrary, it is the case of the KSPCB that the appellant has been abusing the position as a sole operator of the CBWTF in the three districts of Mysore, Coorg and Chamarajanagar and a number of complaints against the appellant was received regarding inadequacy and shortfall in the disposal of waste in the region. Also, in view of the increasing demand for effective bio-medical waste treatment facility, there arose a genuine need for establishing a new CBWTF in the same region.
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67. The scrutiny of the materials would clearly indicate that the contention that there were no complaints against the appellant has to be rejected. On receipt of various complaints, the 2nd respondent/KSPCB issued notices on several occasions to the appellant. The CPCB too had an occasion to issue a direction under section 5 of the EP Act, 1986 on 04.02.2008 for non compliance of Bio-medial Waste (Management and Handling) Rules, 1998 as could be seen from Annexure-I of the common reply affidavit filed by the respondent Nos. 2, 3, and 4. The said direction reads as follows:
*** " Whereas the unit was visited by the CPCB officials and stack emission monitoring of the incinerator was carried out on 19.04.2007, where the violations of the provisions of the BMW Rules were observed and accordingly show cause notice under section 5 of the Environment (Protection) Act, was issued to the unit vide Letter No. B-90
30111/30/93/HWMD/3333 dated 16.07.2007 followed by a hearing on 20.11.2007 at CPCB, Delhi; and,"
***
68. The Mysore District Family Physician Association (R), Mysore has addressed a communication on 18.11.2011 to the appellant complaining about the irregular collection of bio-medical waste and at many times the collecting boys from the appellant's unit used to come once in a week or two to three times in a month. They have addressed a communication to the Environmental Officer of the KSPCB, Mysore on 18.04.2012 stating that wastes are collected two or three times in a month.
69. The appellant was served with a notice on 19.03.2013 by the Deputy Commissioner, Mysore District, Mysore stating that there was a surprise visit to the appellant's CBWTF by the Hon'ble Minister for Medical Education and Mysore District in charge along with the officers of the District Administration, when inter alia the following irregularities and deficiencies were noticed:
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1. The CBWTF was not in operation and it was noticed that the bio-medical waste collected from Mysore, Chamarajanagar and Kodagu Districts was stored in an unscientific manner.
2. The bio-medical waste is ultimately to be disposed by segregating and storing in the respective colour coded containers, All sorts of bio-medical waste was stored in a place was noticed.
3. The incineration for incinerating bio- medical waste was not in operation and there were no written records/documents about the continuous operation.
4. There were no information books available about storage, its quantity and disposal of bio-medical waste and also employees working in the facility were not aware of the information.
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5. The employees working in bio-medical treatment facility have not been provided with safety equipment and safety facilities which may lead to exposure of the employees to certain diseases.
6. It was noticed that in total the bio-medical treatment facility is not disposing the waste as per rules. The persons accompanied during the inspection have also expressed that this facility is not collecting the bio-
medical waste from hospital and other clinics and also levying abnormal fees for collection and disposal of bio-medical waste from the facilitiy as was brought to the notice of the Hon'ble Minister.
7. In continuation, it was also noticed that some clinics have disposed the waste from the Mysore City Municipal Waste Disposal site instead of handling the same in the operator of the facility.
93It is noticed in total that with the above observations about violation of guidelines laid down in the Bio-medical Waste (Management and Handling) Rules, 1998 framed under the Environmental (Protection) Act, 1986, for disposal of the bio-medical waste by Sree Consultants. In this context, to know and get the action taken about the operation and management of bio-medical waste from Karnataka State Pollution Control Board and to take action as per the provisions of the rules against the facility as per the instructions of the Hon'ble Minister, this notice is issued by informing the operator of the facility to take notice and directed to submit compliance report within 7 days from the date of issue of this notice as why the District Administration shall not instruct the KSPCB to issue closure directions under the 94 provisions of the Environmental (Protection) Act, 1986.
70. All the above, would go to show that the CBWTF of the appellant was not in operation properly or when in operation it was not disposing the waste as per the rules and also not collecting the bio-medical waste from the hospitals and other clinics regularly, all in violation of the rules. Equally, the contention put forth by the appellant that its CBWTF was operating below the capacity and there is no need for additional CBWTF has no force since a number of complaints were received from the public and hospitals that the bio- medical waste was neither properly nor regularly collected from the hospitals and clinics.
71. Needless to say, in a thickly populated city like Mysore, where there are a number of hospitals, multi-speciality hospitals, clinics and healthcare centers generating enormous quantities of bio-medical waste, there exists a need for proper treatment and if not done, the same would cause unimaginable health hazards. In such a situation, the appellant against whom complaints of not collecting the bio- 95 medical waste regularly and properly were made cannot be allowed to say that there was no need for the setting up of anymore CBWTF. Under the above circumstances and in view of the increasing demand for disposal of huge quantities of bio-medical waste with suitable incineration plants and also taking into account of the public interest to protect and improve the environment and to prevent hazards by employing qualitative service in the collection, segregation, packing, reception, storage, transportation, treatment, handling and disposal of bio-medical waste, the 2nd respondent/KSPCB is fully justified in granting the establishment of one more CBWTF to the 5th respondent.
72. The Regional Lok Adhalat at Mysore conducted on 02.05.2012 by the High Court Legal Services Committee, Bangalore and presided over by Hon'ble Mr. Justice D.V. Shylendra Kumar had an occasion to consider and issue order inter alia regarding the disposal of bio-medical waste in Mysore District in W.P.No. 13473/1998 (PIL) clubbed with W.P.No. 33645/1998 (PIL).The following part of the 96 proceedings recorded by the Lok Adhalat are relevant for the purpose of consideration of the present appeals on hand.
"Though, ever since the first Regional Lok Adhalat, directions were issued in this regard, progress is very slow and it is unfortunate that the District Administration and Municipal bodies whose primary responsibility is proper disposal of waste generated in within their municipal limits, on the other hand look upto NGOs and others for guidance and for their work to be done.
*** During the presentation by Sri P.S. Vastrad, Deputy Commissioner, Mysore District about the manner of bio-medical waste disposal and steps taken in this regard for satisfactory disposal of bio-medical waste, the representative of Swamy Vivekananda Youth Movement, a voluntary organization 97 providing medical facilities to rural population and having its centre at Saragur, represented by Sri Ramesh Kikkeri has highlighted the problem of non- availability of proper bio-medical waste disposal facilities, within 50 to 60 km of all such places, which generate bio-medical waste, that the human anatomical and animal anatomical waste cannot be transported for a long distance, it will decompose and that only one such unit with one incinerator in Mysore City is totally insufficient, inadequate for the quantity of bio-medical waste generated in the Mysore region and it has to be complied and the so called disposal by the existing unit either may not be satisfactory or not in a proper manner. Therefore, there is very imminent and acute need for establishing more such bio-medical waste disposal units having incineration and 98 other facilities installed therein and permission should be given to have many such units in the region. This aspect is brought to the notice of the Deputy Commissioner, Mysore and also Sri Niranjan, Environmental Officer. While Regional Commissioner may look into this problem and work out ways and means of giving permission for such units which are prepared to put up their plant by the Government itself.
The Pollution Control Board is directed to place an affidavit before the Adhalat indicating the capacity of the existing bio- medical waste disposal units, number of new units to be set up in suitable locations and the workability or feasibility of such plants to cater to the existing need of disposal of bio-medical waste generated by all medical and healthcare facilities etc., in 99 the State and also to suggest what is the additional number of bio-medical waste disposal units required to be set up in suitable locations.
The State Administration is also to bestow its attention to evolve alternate solutions within the limits of Environmental (Protection) Act, Rules and Regulations, wherein the disposal of bio-medical waste and to promote alternate methods within the bounds of law.
*** "
73. The above proceedings of the Lok Adhalat were in two Public Interest Litigations. The proceedings as recorded above would clearly indicate that the Lok Adhalat, after considering the non-availability of proper bio-medical waste facility within 50 to 60 km of places which generate bio- medical waste, that the human and animal anatomical waste when transported for a long distance, will decompose, that only one such unit with one incinerator in Mysore City is 100 totally insufficient, inadequate for the quantity of bio-medical waste generated in the Mysore region, that the so called disposal by the existing unit either may not be satisfactory or not in a proper manner, that therefore, there is very imminent and acute need for establishing more such bio- medical waste disposal units having incineration and other facilities installed therein, that permission should be given to have many such units in the region, thought it fit to direct the Deputy Commissioner, Mysore and also Sri Niranjan, Environmental Officer and that while Regional Commissioner might look into this problem and work out ways and means of giving permission for such units which were prepared to put up their plant by the Government itself.
74. Since the Lok Adhalat has made the above observations considering the totality of the facts and circumstances and reasons for the establishment of more CBWTF, the respondent/KSPCB pursuant thereto has granted the consent in favour of the 5th respondent to establish one more CBWTF which in the considered opinion of the Tribunal was in the public interest in order to 101 protect the environment and prevent the environmental hazards by improving the quality of service. The contention putforth by the appellant that no complaints were made by the Environmental Officer and the appellant was not a party before the Lok Adhalat proceedings cannot stand scrutiny since it was a Public Interest Litigation and the observations were made by the Lok Adhalat recording all facts, circumstances and reasons.
75. The contentions putforth by the appellant that the consent to operate CBWTF given in favour of the appellant originally for 4 districts was restricted to 3, namely, Mysore, Coorg and Chamarajanagar and authorization was renewed upto 30.06.2014 and the consent has also been renewed under the Water and Air Acts till 30.06.2018, the act of the KSPCB in granting consent in favour of the 5th respondent to establish one more CBWTF was in violation of Principles of Natural Justice since no opportunity of being heard was afforded to the appellant, attractive though at the first sight, do not stand the scrutiny for the reasons that what is challenged by the appellant in these appeals is 102 the grant of consent for establishment of a CBWTF to the 5th respondent. For issue of such consent to the 5th respondent or for that matter any other person, the 2nd respondent KSPCB who is empowered to give consent need not necessarily give any notice to the appellant or canvas his nod before granting the consent.
76. The appellant cannot claim any vested right because of the grant in his favour or infringement in view of the grant in favour of the 5th respondent and no right of the appellant is infringed by granting consent for CBWTF in favour of the 5th respondent.
77. A feeble attempt was made by the learned counsel for the appellant that the CPCB draft of the revised guidelines have now been issued which are made part of the Bio- medical Waste (Management and Handling) Rules, 1998 and a draft gazette notification has also been issued in order to bring the amended rule into force. This contention was rightly answered by the learned counsel for the CPCB that the CPCB has initiated the process of revising the existing guidelines for setting of CBWTF which is not yet 103 finalized. Needless to say that any rule or guidelines which are in the draft stage cannot be taken up for consideration or acted upon. Equally, the Tribunal is unable to notice any force in the contention put forth by the counsel for the appellant that by establishing one more CBWTF in a particular area, there will be a proliferation of waste treatment equipment which would not be conducive to the environment. This contention is unacceptable from the point of view of environmental protection. Non-availability of proper or insufficient and inadequate bio-medical waste disposal facility would certainly cause health problem and hazards. If only one CBWTF should be allowed to operate within a radius of 150 km as put forth by the appellant, the human and animal anatomical wastes cannot be transported quickly in order to avoid decomposition. No doubt, there exists very imminent and acute need for establishing more bio-medical waste treatment disposal units having incinerator and other facilities therein. While huge quantities of bio-medical wastes are generated, more units have to be necessarily set up in suitable locations in 104 the same area in order to cater to the existing needs of disposal of bio-medical waste.
78. It is not disputed that the 2nd respondent/KSPCB has followed the guidelines with regard to the technical specification for equipment and disposal of waste. So long there is no provision for restricting the power of the Pollution Control Board to grant establishment of additional CBWTF, the act of the 2nd respondent/KSPCB in granting consent in favour of the 5th respondent cannot be termed as illegal.
79. Apart from all the above, allowing one CBWTF of the appellant alone to operate within a radius of 150 km by placing restraint on the KSPCB not to give consent for additional CBWTF would be nothing but imposing restriction on the power of the KSPCB which would not be consistent with the provisions of EP Act, 1986 and also the rules made thereunder. If the relief of quashing the consent given in favour of the 5th respondent for establishment of a new CBWTF as asked for by the appellant is granted, it would be imposing unreasonable restriction on the freedom 105 of trade of the 5th respondent apart from creating an impermissible monopoly in favour of the appellant.
80. While interpreting the nature of fundamental right under Article 19 (1) (g) of the Constitution of India, the Hon'ble Supreme Court of India has held in 'The Nagar Rice and Flour Mill v. N.T. Gowda' (1970(1)SCC 575) that "the right to carry on the business being a fundamental right under Article 19(1)(g) of the Constitution, its exercise is subject only to the restrictions imposed by law in the interest of general public under Article 19(1)(i)". ..."Competition in the trade or business may be subject to such restrictions as are permissible and are imposed by the State by a law enacted in the interest of the general public under Article 19(6), but a person cannot claim independently of such restriction that another person shall not carry on business or trade so as to affect his trade or business adversely."
81. Terming the monopoly right as indefensible and impermissible, the Apex Court in the matter of 'State of Rajasthan v. Mohan Lal Vyas (1971 (3) SCC 705) has held as follows:
106
"A monopoly right cannot be conferred on a citizen under the Constitution nor can it be justified under the Constitution." ".... ,if the State conferred any monopoly right on a citizen it would be defensible and impermissible and would be an infraction of the inviolable provision of the Constitution."
82. The above decisions support the contentions of the 5th respondent in whose favour the Consent to Establish for the CBWTF was granted by the 2nd respondent/KSPCB.
83. Under such circumstances, the problem can be solved only by having common bio-medical waste treatment facilities situate within short distance from the health care units generating bio medical wastes enabling the transportation of bio-medical waste within a short span of time before they become decomposed. From the point of view of environmental protection, the establishment or having only one CBWTF would no doubt, defeat the 107 purpose, since it would not only be insufficient, but also inadequate.
84. Hence, in the instant case, there existed an imminent and acute need for establishing more CBWDT units and in that line the 2nd respondent/KSPCB has rightly given the 108 consent to the 5th respondent for establishing its CBWTF and the same is justified.
85. For the reasons stated above, the appeals are dismissed as devoid of merits. The miscellaneous applications, if any pending are closed.
No cost.
(Justice M. Chockalingam) Judicial Member (Prof.Dr. R. Nagendran) Expert Member Chennai, 14th July, 2014 109