Calcutta High Court (Appellete Side)

And Another vs The State Of West Bengal And Others on 31 July, 2023

                     In the High Court at Calcutta
                    Constitutional Writ Jurisdiction
                             Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                           WPA No. 16828 of 2023
                                   with
                           WPA No. 13843 of 2023

                 MikkyMegha Hospital Private Limited
                             and another
                                 Vs.
                 The State of West Bengal and others

     For the petitioners            :    Mr. Syed E. Huda,
                                         Mr. Sounak Mookhopadhyay,
                                         Ms. Dipanwita Das

     For the State in
     WPA 16828 of 2023              :    Mr. Tapan Kumar Mukherjee,
                                         Mr. Pinaki Dhole,
                                         Mr. Somnath Naskar
     For the State in
     WPA 13843 of 2023              :    Mr. Pinaki Bhattacharyya,
                                         Mr. Sourav Chaudhuri,
                                         Ms. Anima Das Chakraborty


     For the West Bengal Pollution
     Control Board                 :     Ms. Sonal Sinha

     For the respondent no.6        :    Ms. Reshmi Ghosh,

Mr. Soumya Sarkar Chini

Hearing concluded on : 26.07.2023

Judgment on : 31.07.2023

Sabyasachi Bhattacharyya, J:-

1. The moot question which arises in the present writ petition is whether

the renewal of the petitioners‟ licence, for operating a Diagnostic

Centre/Medical Facility, could be rejected by the respondent-

Authorities on the ground of non-production of an agreement with

respondent no.6, with regard to bio-medical waste management.

2. The respondent-Authorities place reliance on a notification dated

March 28, 2016 issued by the Government of India, Ministry of

Environment, Forest and Climate Change as well as the West Bengal

Clinical Establishments (Registration, Regulation and Transparency),

Rules, 2017 (hereinafter referred to, "as the 2017 Rules"). The Central

Government notification dated March 28, 2016 formulates the Bio-

Medical Waste Management Rules, 2016 (for short, "the 2016 Rules").

3. Learned counsel for the petitioners argues that the petitioners

produced a „No Objection‟ Certificate from the Pollution Control Board,

as required to be submitted for renewal of licence. However, the

respondent-Authorities insisted on production of an agreement for

bio-medical waste management.

4. It is clear from the communication dated July 12, 2023, by which the

petitioners‟ application for renewal of licence was cancelled, that the

ground therefor was that the petitioner had failed to submit a valid

agreement with any Common Bio-Medical Waste Treatment Facility

approved by the West Bengal Pollution Control Board or to make any

alternative arrangements duly approved by the Pollution Control

Board for the treatment and disposal of the bio-medical waste

generated from the petitioners‟ Healthcare Facility.

5. The relevant statute governing the field is the West Bengal Clinical

Establishments (Registration, Regulation and Transparency) Act, 2017

(in brief, "the 2017 Act"). As per Section 7(2)(e) of the said Act, no

licence shall be granted in respect of a clinical establishment unless it

has made such arrangements for disposal of bio-medical waste as may

be prescribed. The respondents are justified in arguing that the same

standards should be followed in case of renewal of license as well.

6. Section 2(1)(m) of the 2017 Act defines "prescribed" by rules made

under the said Act.

7. In terms of Section 2(1)(m), the 2017 Rules have been notified vide

Notification dated August 21, 2017, published in the Official Gazette.

8. Rule 21 under Chapter III of the same deals with Sanitation, Hygiene,

Safety and Security.

9. Sub-rule (4) of Rule 21 provides that, in order to ensure sanitation

and hygiene, the clinical establishment shall either obtain the

authorization/licence/No Objection Certificate from Pollution Control

Board under the Bio-Medical Waste (Management and Handling)

Rules, 1998 (hereinafter referred to as, "the 1998 Rules") and submit a

copy of the same along with the application for new clinical

establishment licence/renewal thereof, or submit a copy of application

already submitted to obtain such authorization/licence/No Objection

Certificate under such Rules.

10. In the present case, there is no dispute that the petitioner has

produced, along with its application for renewal of licence, a No

Objection Certificate from the Pollution Control Board.

11. The question which arises is whether the same amounts to sufficient

satisfaction of Rule 21(4) of the 2017 Rules.

12. One of the options given in sub-rule (4) of Rule 21 is production of a

No Objection Certificate from the Pollution Control Board, which has

been complied with by the petitioner.

13. The question which arises next is, whether the said Certificate was

under the 1998 Rules mentioned in sub-rule (4).

14. In such context, the Bio-Medical Waste (Management and Handling)

Rules, 1998 acquires relevance. The said Rules were issued by the

Government of India, Ministry of Environment, Forest and Climate

Change.

15. However, vide Notification No. G.S.R. 343 (E) dated March 28, 2016,

issued by the same Ministry of the Union Government, the Bio-

Medical Waste Management Rules, 2016 (for short, "the 2016 Rules")

was promulgated. It is clearly stipulated in the said notification that

the 2016 Rules have been made in supersession of the 1998 Rules.

16. Hence, by necessary implication, it is to be deemed that the 1998

Rules, referred to in Rule 21(4) of the 2017 Rules, should be read as

the 2016 Rules, which has superseded the same.

17. It is interesting to note that the 2016 Rules were framed in exercise of

the powers conferred by Sections 6, 8 and 25 of the Environment

(Protection) Act, 1986 (in brief, "the 1986 Act") and, thus, do not fall

strictly within the purview of Section 2(1)(m) of the 2017 Act of West

Bengal.

18. Yet, by virtue of Rule 21(4) of the 2017 Rules, framed under the 2017

Act, the provisions of the 1998 Rules and, hence, by implication the

2016 rules, have been imported as a part of the 2017 Rules, inasmuch

as the No Objection Certificate from the Pollution Control Board is

concerned. UP TO THIS

19. Nothing in the 2016 Rules envisages a mandatory agreement for bio-

medical waste management/disposal with any particular third party.

There are several provisions in the 2016 Rules, which mandate that

the operator of a particular institute duly take care of bio-medical

waste management. The comprehensive provisions of the 2016 Rules,

which have also been imported as part of the 2017 Rules by dint of

Rule 21(4) of the 2017 Rules, lend validity to a No Objection Certificate

issued by the Pollution Control Board issued under Rule 21(4).

20. In the present case, since the petitioners duly obtained a No Objection

Certificate from the Pollution Control Board, a presumption of law

arises that the petitioner has duly complied with the 2016 Rules.

Hence, nothing in either the 2017 Rules or the 2016 Rules or the 2017

Act, for that matter, mandate the petitioners to produce a further

agreement with any third party-agency regarding bio-medical waste

management for a renewal of license.

21. Thus, the further insistence of the respondent-Authorities on the

production of a valid agreement with a Common Bio-Medical Waste

Treatment Facility approved by the Pollution Control Board is de hors

the law not a valid ground for rejection of an application for renewal of

licence to a Clinical Establishment under the 2017 Rules.