Juna Deesa Gram Panchayat vs State Of Gujarat
2021 Latest Caselaw 1861 Guj

         C/SCA/19214/2015                                         JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 19214 of 2015
                                 With
             CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2018
            In R/SPECIAL CIVIL APPLICATION NO. 19214 of 2015

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA
================================================================

1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

================================================================
                 JUNA DEESA GRAM PANCHAYAT & 4 other(s)
                                Versus
                      STATE OF GUJARAT & 3 other(s)
================================================================
Appearance:
MR BHUSHAN B OZA(1072) for the Petitioner(s) No. 1,2,3,4,5
 for the Respondent(s) No. 1
MR ISHAN JOSHI,AGP for the Respondent(s) No. 1,2
MR AMIT N PATEL(2749) for the Respondent(s) No. 4
MR MEHUL H RATHOD(701) for the Respondent(s) No. 3
================================================================
    CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 09/02/2021
                               ORAL JUDGMENT

Heard learned advocate Mr.Bhushan Oza for the petitioners, learned Assistant Government Pleader Mr.Ishan Joshi for the respondent Nos.1 and 2, learned advocate Mr.Mehul Rathod for the respondent No.3 and

C/SCA/19214/2015 JUDGMENT

learned advocate Mr.Amit Patel for the respondent No.4 through video conference.

1. Rule. Learned Assistant Government Pleader Mr.Ishan Joshi waives service of notice of rule for respondent Nos.1 and 2, learned advocate Mr.Mehul Rathod wavies service of notice of rule for respondent No.3 and learned advocate Mr.Amit Patel waives service of notice of rule for respondent No.4.

2. By this petition under Article 227 of the Constitution of India, the petitioners have prayed for the following reliefs:

"(A) To issue a writ of mandamus or a writ in the nature of mandamus or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 22.07.2015 passed by the Learned Secretary (Appeals), Revenue Department in Revision Application No.MVV/JMN/BNS/04/2014 confirming the order dated 10.12.2013 of the Collector, Banaskantha bearing No.A.Jamin.2./Remand Case No.10/11­12 allotting 10 acres of land admeasuring Survey No.727/­ P/1 of village Juna Deesa for the ressons stated in the Memo of the Petition;

(B) Pending admission, hearing and final disposal of the above Special Civil Application, to stay the execution, implementation and operation of the impugned orders dated 22.7.2015 passed by the Learned Secretary (Appeals), Revenue Department in Revision Application No.MVV/JMN/BNS/04/2014 confirming the order dated 10.12.2013 of the Collector, Banaskantha bearing No.A.Jamin.2./Remand Case No.10/11­12 allotting 10 acres of land admeasuring Survey No.727/­P/1 of village Juna Deesa for the reasons stated in the Memo of Petition;

(C) To grant ad­interim and interim relief in terms of Para­9 (B) hereinabove for the reasons stated in the Memo of the Petition.

(D) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require.

(E) To award the cost of this petition."

3.    Having        regard      to     the          controversy      in      narrow






         C/SCA/19214/2015                                          JUDGMENT

compass and with consent of the learned advocates for the respective parties, the matter is taken up for hearing.

4. Brief facts of the case are as under:

4.1. The Collector, Banaskantha vide order No.A/Jamin/2/Vashi/N.P.Ghan Kachara Vashi.6252 to 61 dated 29.12.2003 directed to resume the Government the Gauchar land admeasuring 10 acres of Survey No.727/P/1 of the village­Juna Deesa from the panchayat without any compensation and allotted the said land to Deesa Nagarpalika for the disposal of the solid waste.

4.2. Against the aforesaid order of the Collector, Banaskantha, the village people of Juna Deesa had preferred Revision Application before the Secretary (Appeals) Revenue Department (for short 'SSRD'), being Revision Application No.37/2004. The SSRD vide order bearing No.JMN/BNS/37/2004 dated 13.05.2011 partially quashed and set aside the said order and remanded the matter to the Collector, Banaskantha at Palanpur.

4.3. Thereafter the Collector, Banaskantha, once again vide order dated 10.12.2013 reiterated his previous order after hearing the people of village Juna Deesa.

4.4. Being aggrieved by the said order, the people of

C/SCA/19214/2015 JUDGMENT

village Juna Deesa, preferred Revision Application before the SSRD being Revision Application No.MVV/JMN/BNS/4/2014. The village people had filed the said Revision Application in the nature of Public Interest Litigation and accordingly, it was so stated in the cause­title of both the revision applications of the year 2004 as well as 2014. The SSRD vide his order dated 4/5.6.2014 granted stay of the execution of the order passed by the Collector, Banaskantha.

4.5.During the pendency of the aforesaid Revision, the Deesa Nagarpalika had started violating the order of status­quo and therefore Sarpanch of Juna Deesa had made representation to the Collector on 14.07.2014 that despite the order of the SSRD the Deesa Nagarpalika was continuing to dump the solid waste at the particular site and on 17.07.2017 started the work of digging bore well, therefore action should be taken against them. The Deputy Collector, Deesa wrote letter to the Chief Officer, Deesa Nagarpalika to act in accordance with the stay order.

4.6.Thereafter, the SSRD Secretary (Appeals) Revenue Department, vide judgment and order dated 22.07.2015 dismissed Revision Application and confirmed the order dated 10.12.2013 of the Collector, Banaskantha.

5. Learned advocate Mr.Oza submitted that the order of the Collector, Banaskantha allotting land bearing Survey No.727/P/1 of Juna Deesa to Deesa Nagarpalika

C/SCA/19214/2015 JUDGMENT

for the disposal of solid waste is erroneous, illegal and discriminatory.

5.1. It was submitted that the distance between Juna Deesa and Nava Deesa is approximately 5 kms and though there was sufficient land at Nava Deesa being waste land demand for the particular land of Juna Deesa was made and the Collector without considering objections of the village people granted the said land.

5.2. It was submitted that the Municipal Solid Waste

(Management and Handling) Rules, 1999 (for short

'Rule 1999') is applicable to every municipal

authority responsible for collection, segregation,

storage, transportation, processing and disposal of

municipal solid wastes. Rule­4 thereof provides for

Responsibility of municipal authority. Rule­4(1) as

under :

"Every municipal authority shall, within the territorial area of the municipality, be responsible for the implementation of the provisions of these rules, and for any infrastructure development for collection, segregation, storage, transportation, processing and disposal of municipal solid wastes."

Therefore, the selection of landfill site outside the

territorial area of the Municipality is against the

provisions of the Rules, 1999.

         C/SCA/19214/2015                                           JUDGMENT



5.3. It      was      submitted     that         by     selection          of       the

particular site, the Rules, 1999 are also violated

since the indiscriminate and unprocessed disposal is

taking place, as the liquid that seeps through solid

wastes or other medium and has extracts of dissolved

or suspended material from it which is contrary to

the Rules, 1999.

5.4. It was submitted that the waste disposal by the

respondent Municipality of commercial and residential

waste also includes solid and semi­solid hazardous

waste from the industry. It was further stated that

there is no treatment provided to the bio­medical

waste which is being disposed by the Municipality

contrary to the definition of Municipal Solid Wastes

as contained in Clause­(xv) of Rule­3 of the Rules,

1999.

5.5. It was submitted that the selection of the

landfill site is also contrary to the Schedule­III of

the Rules, 1999. The area has been selected without

having necessary consideration for the habitation

clusters, water bodies, monuments, wet lands, etc.

C/SCA/19214/2015 JUDGMENT

which is contrary to Schedule­8 of the Schedule­III

of the Rules, 1999. No buffer zone has been

maintained around the landfill site and it has not

been incorporated in the Town Planning Department's

land use plans as reliably learnt by the petitioners.

5.6. It was further submitted that the selection of

the site for landfill site is contrary to Clause­10

of Schedule­III of the Rules, 1999. Not only that

the Clause­12 of the Rules, 1999 is also being

blatantly violated and stray animals are entering the

site freely as can be seen from the photographs

annexed.

5.7. It is submitted that the waste subjected to the

land filling is not compacted as per Clause­18 of

Schedule­III nor is the waste covered at all though

provided by Clause­III of Schedule­III of the Rules,

1999.

5.8. It was submitted that as per reliable

information there is lot of waste land available in

148 villages of Deesa Taluka and therefore the

C/SCA/19214/2015 JUDGMENT

gauchar land acquired for the disposal of solid waste

near Juna Deesa village is not required to be used

for such purpose.

5.9. It was submitted that Air strip is at a distance

of 5 kms. from the land used for disposal of solid

waste by the respondents and the use of land for such

disposal without prior permission of the Airport

Authorities is illegal according to the norms laid

down by Central Pollution Control Board.

5.10. It was submitted that the Juna Deesa Gram

Panchayat had by passing resolution objected to the

allotment of gauchar land for solid waste disposal in

view of the fact that there is no adequate gauchar

land in the village.

5.11. It was submitted that the Collector has

allotted the land without calling for objections or

suggestions from the village and ignored the

resolution opposing the said allotment.

5.12. It was submitted that though the Collector

C/SCA/19214/2015 JUDGMENT

has vide Condition No.24 of the said order stated

that there is a VOKLA (water way) at near distance of

the land and therefore arrangement would have to be

made to ensure that the water of the allotted land

does not go to the VOKLA. This condition is factually

incorrect because the Deputy Collector who has given

his report has done so without personally visiting

the site. In fact the land in question itself is

VOKLA land and not that it is near VOKLA. Therefore

no such land could be allotted for solid waste

disposal.

5.13. It was submitted that the Collector has

ignored that the land in question if abutting Gangli

Mahadev Temple. Not only that in the vicinity of the

land in question there is Siddh Ambika Dishaval Sangh

Temple and Shatra Sahid Dargah of Muslims. In

addition thereto, there are ancient Derasars of Jains

at village Juna Deesa. At these religious places

every year there are big religious festivals taking

place and due to the disposal of solid waste and foul

smell emitting therefrom, it would hurt the religious

feelings of not only the village people but also

C/SCA/19214/2015 JUDGMENT

people who would visit these places from all over the

country. That every Thursday people of both Hindus

and Muslims communities visit Satra Sahid Dargah.

5.14. It was submitted that the land in question

is abutting Deesa Patan Highway on the western side.

The said Highway is busy road where every day

thousands of persons commute by vehicles. They all

will have to face the foul smell emitting from the

disposal of solid waste and situation will aggravate

during Monsoon.

5.15. It was submitted that on one hand, the

Government undertakes big projects for the protection

of environment and on the other hand, by this

allotment, it causes deterioration of environment.

5.16. It was submitted that the rain water comes

to this VOKLA from the upstream and merges in river

Banas as the said land is used for the disposal of

solid waste, then with the flow of rain water, the

solid waste would also flow and go to river and such

waste would spoil the water table of the area due to

C/SCA/19214/2015 JUDGMENT

percolation of water.

5.17.It was submitted that as per the guidelines of

Central Pollution Control Board as well as Gujarat

Pollution Control Board, no site can be allotted for

disposal of solid waste in flood prone area. It was

submitted that though these guidelines were produced

before the Collector as well as Learned Secretary

(Appeals) they have ignored the same.

5.18. It was submitted that in the year 1973

there was flood on account of breakdown of Dantiwada

Dam and the flood water had caused heavy damage to

the lands of Juna Deesa. The particular land bearing

Survey No.727/P/1 was affected by the said flood.

5.19. It was submitted that the team of Medical

Officer, R.M.C. Juna Deesa, Block Health Officer,

Deesa, and Urban Health Officer, P.P. Unit Govt.

Hospital, Deesa had visited the village and addressed

letter dated 2.5.2009 to the Gram Panchayat that they

had visited the village Juna Deesa on 17.4.2009

alongwith Chief Officer, Deesa Nagarpalika and

C/SCA/19214/2015 JUDGMENT

Sanitary Inspector. It was clarified that they had at

no point of time given any N.O.C. for the allotment

of the aforesaid land for the disposal of solid

waste. It was also stated that they had clearly

directed the Chief Officer not to dispose solid waste

where there is flow of water since as per the Rules

for disposal of Solid Waste, solid waste cannot be

disposed of at a place where there is water flowing.

5.20. It was submitted that the Deputy Executive

Engineer, Dantiwada Dam Works Sub­Division no.1,

Deesa had given certificate dated 16.11.2009 that

land bearing Survey No.727/P/1 was affected by the

flood of 1973 and had caused severe damage to this

land and the water had gone to river Banas. Thus this

land is flood affected land. It was further submitted

that the flood had caused VOKLA in the gauchar land

which is existing today.

5.21. It was submitted that the Gujarat Pollution

Control Board had issued public notice in the

newspapers on 17.1.2004 pursuant to order dated

14.10.2003 of the Apex Court. The said public notice

C/SCA/19214/2015 JUDGMENT

inter alia stated that nobody would be allowed to

dispose of solid waste in open and if anybody does

so, they would be dealt with in accordance with law.

5.22. It was submitted that as per the guidelines

of Central Pollution Control Board, there should be a

non­development buffer zone upto 500 meters around

the land fill site boundary. Despite this clear

provision, the Collector, Banaskantha vide order

No.A.Jamin.2.Vashi.59093 dated 27.12.2009 allotted

land bearing Survey No.517(Paiki)1/20 admeasuring 5

acres for landless eligible persons. This land was

allotted for the persons belonging to homeless

persons of nomadic tribes. For this the Collector had

relied on letter dated 22.12.2009 of the Block Health

Officer and very Block Health Officer has written

letter dated 2.5.2009 to the Juna Deesa Gram

Panchayat.

5.23. It was submitted that the SSRD while

disposing of the Revision Application did not take

any of the contentions raised by the village people

and on the contrary held that the Nagarpalika has

C/SCA/19214/2015 JUDGMENT

created borewell in the said land. Though admittedly

the said borewell was dug during the period when

there was stay operating. Not only that the SSRD has

on extraneous grounds observed that the village

people want to encroach upon the Gauchar land though

no specific instance or allegation is made or

produced by any of the parties in this regard.

5.24. It was submitted that the petitioner no.1

in this petition is the Gram Panchayat and the

Sarpanch has declared on oath that the Gram Panchayat

would ensure that no person of the village makes any

encroachment whatsoever no the gauchar land and if

any such encroachment is at all made, the Panchayat

would make all efforts to remove it with the help of

Taluka Panchayat and District Panchayat.

5.25. It was submitted that the manner and method

in which the Deesa Nagarpalika is disposing of the

solid waste is most careless and reckless. Not only

solid waste but also hazardous medical waste is being

dumped at the site in open. This medical waste

include medicines, injections, foetus etc. This is

C/SCA/19214/2015 JUDGMENT

against the provisions for disposal of solid waste as

well as disposal of hazardous medical waste. The

Deesa Nagarpalika is burning the entire waste which

is solid waste alongwith medical waste.

5.26. It was submitted that the photographs

annexed would reveal that the solid waste is dumped

in such a manner that cattle which come there for

grazing also consume it and thereby it causes serious

threats to the cattle as well as human beings who

drink the milk of such cattle.

5.27. It was submitted that the Govt. of Gujarat

has time and again directed by various Notifications

that there should be enough gauchar land for the

cattle of the villages. It is provided that there

should be 100 acres of land for every 40 cattle. The

order by which the gauchar land of the village Juna

Deesa is taken away is in violation of these

directions and Notifications.

5.28. It was submitted that continuation of this

solid waste disposal site would cause immense danger

C/SCA/19214/2015 JUDGMENT

to the health and hygiene of the residents of village

Juna Deesa and the cattles of the village since it is

on Gauchar land. Not only that it will pollute the

river as well as the underground water in the area.

Thereby the damage to the environment will be of

permanent nature.

5.29. It was submitted that the Deesa Nagarpalika

has to find some other site which is away from human

habitat so as to avoid inconvenience and damage to

the human habitat and cattle and environment.

5.30. It was submitted that the actions of the

respondents authorities are also in violations of the

directions issued by the Division Bench of this

Hon'ble Court in SCA No. 10261/2000 vide judgment and

order dated 2.8.2002 in Para­24 thereof. The Hon'ble

Court passed following guidelines in Para­24 of the

said judgment:

"24. To sum up, we issue the following directions:­ [A] The State Government will notify all the lakes and ponds as may have been shown in the areas covered by the Town Planning Schemes and the Development Plans, as also those in the areas not so covered throughout the State, in short, all the waterbodies in the territory of the State that vest in the State and / or the Area Development Authorities or the local bodies including Panchayats, in the official gazette within three months

C/SCA/19214/2015 JUDGMENT

from the date of this order.

[B] The State Government and all Area Development Authorities and local Bodies will protect, maintain and preserve all the waterbodies in the State which are identified as per the development plans, town planning schemes and the government records and which will be notified in the official gazette, as waterbodies and they will not be alienated or transferred or put to any use other than as waterbodies.

[C] The respondents authorities should take steps to get the standards of quality of water of the lakes and ponds prescribed by the concerned authority under the law, and devise mechanism for periodic monitoring of the quality of water in these lakes and ponds.

[D] The State Government, the Area Development Authorities and the Local Authorities should take urgent measures to rejuvenate the waterbodies which are to be notified in the gazette by undertaking a declared phased programme of desiltation and make adequate provisions for recharging them by appropriate storm water drains and other feasible means and to take measures against pollution of such waterbodies.

[E] The State Government shall expeditiously take steps to constitute Water Resources Council as contemplated in the Draft Water Policy of the State, headed by the Hon'ble the Chief Minister with other Ministers, including the Ministers in charge of Environment and Urban Development Departments to oversee the programme for protection, preservation and improvement of the waterbodies. The State Government will also constitute the Water Resources Committee headed by the Chief Secretary which may include the Secretaries of Environment, Urban Development and Agriculture Departments, for monitoring _ the implementation of the programme in a time­bound manner with periodic review of its success. This Committee shall place the particulars of the targets achieved and the causes of non­fulfilment of the targets periodically before the Water Resources Counci, for its consideration.

[F] The State Government, the Area Development Authorities and the local bodies are directed to prepare an authenticated record in form of videography, photography and panchnamas of the existing encroachments and take urgent steps to remove them in accordance with law and the rehabilitation policies of the Government. Responsibilities of the officers / staff concerned should be fixed in respect of non­removal of encroachments and fresh encroachments. The Water Resources Committee will closely monitor the removal of encroachments by the

C/SCA/19214/2015 JUDGMENT

concerned authorities, and, the Area Development Authorities and the local bodies shall furnish, quarterly, particulars of such encroachments and their removal to the Water Resources Committee.

[G] The question of determining the peripheral area surrounding a lake or pond on which construction may be prohibited will be taken up by the concerned authorities for consideration in the context of the development of individual lakes and ponds and the authorities will take decisions thereon having regard to the relevant factors which may have a bearing on the protection, preservation and improvement of lakes, ponds and other water bodies, and once the peripheral area, around a lake or pond, in which there will be no construction allowed is determined, the same shall be notified. All the applications for building permissions which may be pending, may accordingly be decided as per the regulations and keeping in view the requirement of individual waterbodies."

6. On the other hand learned advocate Mr.Rathod appearing for the respondent No.3, relying upon the averments made in the affidavit­in­reply filed by the Chief Officer, Deesa Nagarpalika submitted that the Collector has power to grant the land and accordingly the land was granted in the year 2003. Learned advocate Mr.Rathod relied upon the following averments in the affidavit­in­reply:

"7. At the further outset, I say and submit that , the original challenge by the petitioners is suffers from vice of delay and latches as the order of allotting land to the Municipality as "Dumping Site"(in some communication erroneously mentioned as "Land Fill site") of 29.12.2003 (Annx.A Pg.23) was challenged by the present petitioners for the first time in the year 2014 before the Ld. SSRD, i.e. after period of about 11 years, and therefore also the Hon'ble Court may be pleased to reject the same summarily with cost.

8. At the further outset, I say and submit that, the land was allotted to the municipality vide order dated 29.12.2003 of the Collector, Banaskantha (Ann.­A Pg.23) as "Dumping Site" for establishing collection, segregation, processing and management of the municipal solid waste as per the provisions of "The Municipal Solid Waste (Management and Handling) Rules, 2000 ('the Rules, 2000' for short). I say and submit that, one Shankarlal

C/SCA/19214/2015 JUDGMENT

Bhagwandas Solanki (non petitioner herein) has challenged the said order of allotment of the Collector, Banaskantha before the Ld.SSRD by way of Revision Application No.37 of 2004. I say and submit that, the Ld. SSRD was pleased to partly allow the said Revision Application by remanding the matter to the Collector, Banaskantha vide order dated 10/13.05.2011 (Ann.­B.Pg.32). I say and submit that, thereafter the Collector, Bananskantha after hearing all the concerned reconfirmed the earlier order dated 29.12.2003 vide his order dated 10.12.2013 (Ann.C.Pg.38). The facts of the case are enclosed herewith as ANNEXURE­R­1 to this reply.""

9. PRELIMINARY SUBMISSIONS:­

9.1. That, the land in question was assigned to the municipality as "Dumping Site" for the purpose of collection, segregation, storage, processing, and disposal of Municipal Solid Waste as per the provisions of the Municipal Solid Waste (Management and Handling) Rules, 2000.

9.2. That, as per the provisions of Municipal Solid Waste (Management and Handling) Rules, 2000 the municipal authorities is under obligation to manage the Municipal Solid Waste in the scientific way as per the provisions of Rules, 2000.

9.3. That, the General process of managing and handling the Municipal Solid Waste at the dumping site as under:­

Step­1 Collection of solid waste from door to door within the municipality area.

Step­2 Collected solid waste to be transported till the Dumping Site and to be dumped at the site.

Step­3 At dumping site the solid waste aret o be segregated.

Step­4 After segregation the solid waste to be managed as under:­

Bio­degrable waste to be used for Varmi composting process to make it compost at the Varmi Compost Plant set up at site.

Recyclable Non Bio­degradable segregated solid waste sent for recycling.

Non recyclable residual solid wastes are to be pressed and/or sent for disposal to the "landfill site" designated for the purpose.

9.4. That, on 13.09.05 the Government appointed M/s. GUDCL as nodal agency for constructing Shed for setting up Varmi Compost Plant at 'Dumping Site' and for developing 'Dumping Site' as well as "Landfill Site", if designated.

9.5. That, on 19.04.2011 M/S.G.U.D.C. has constructed shed/unit Varmi Compost Plant at the Dumping Site and handed over the same

C/SCA/19214/2015 JUDGMENT

to the municipality.

9.6.That, the municipality also drilled tube well as water is the most essential aliments for functioning the Varmi Compost Plant, but plant could not be commissioned because of pendency of Remand Case and thereafter because of Ex­parte interim order dated 29.05.2014.

9.7. That, on 26.11.2013 the municipality executed agreement with M/s. M.B.Enviro Science an organic, Ahmedabad to act as operator of facility for the purpose of Managing and Handling the solid waste as per the Solid Waste Rules, 2000, which was cancelled on 12.02.2016 as the said party did not commence the work even after rejection of Revision Application by the Ld.SSRD.

9.8. That, for commissioning the Varmi Compost Plant, initially there has to be storage of particular amount of Solid Waste at site for smooth functioning of Varmi Compost Plant and therefore the work of staking collected solid waste were started at site.

9.9. That, after the order of Ld. SSRD, considering the urgency on 15.02.2016 is enclosed herewith and marked as ANNEXURE­R­2 to this reply.

9.10. That, municipality has also issued work order on 08.02.2016 for construction of compound wall of the dumping site so as to avoid visibility of Dumped solid waste.

9.11. That, unless plant was permitted to be functioned smoothly then only solid waste can be managed property as per the Rules. The smooth functioning of Varmi Compost Plant and Management of Solid Waste might take about 2 to 3 months period after the commencement of the plant.

9.12. That, the municipality is neither collecting the 'Medical Waste' nor permitting anyone to dump/dispose the medical waste at the dumping site as the same is required to be disposed of in accordance with 'the Bio­Medical Waste (Management and Handling) Rules, 1998' by the nursing homes/hospitals.

9.13. That, the municipality is also not disposing the remains of dead animals in open at the dumping site or nearby to the Dumping Site or at any other place in open.

10. Without prejudice to what is stated hereinabove, and before dealing with the memo of petition on merits I most humbly submit that:

10.1. I say and submit that, I was shocked to see the photographs of Medical Waste produced with the memo of petition at Pg.84 and the dead animals (Pg.87) and I personally visited immediately the site as well as personally inquired with the staff of the municipality immediately that neither the Medical Waste is being collected or dumped at site by the Municipality nor the remains of dead animals are thrown in open at site or nearby to site.

10.2.     I   say    and   submit   that,      the   Medical   waste     is    being





        C/SCA/19214/2015                                           JUDGMENT

collected by the agency directly from the Nursing Homes/ Hospitals and each Nursing Homes/ Hospitals are having agreement to dispose of the Medical waste as per the Bio­Medical Waste (Management and Handling) Rules, 1998. Therefore question of collecting Medical Waste, by Municipality and to dumped at site does not arises. Copy of letter issued by Secretary and President of Indian Medical Association, Deesa Branch dated 01.11.2015 is enclosed herewith and marked as ANNEXURE­R­3 to this reply.

10.3. I say and submit that, one minute observation of photographs at Pg.84 it seems that 'Medical Waste' are being collected in cloth or plastic bag and then the same seems to be photographed. On further minute observation it also becomes clear that the photograph posted at middle of page 84 was seems to be enlarged twice and posted above and below of the middle photograph and annexed with the memo of petition as 3 different photographs. I deny that, the photographs of Medical Waste are of Dumping Site of Deesa Municipality. However, I say and submit that, if at all the petitioners bring any material or proof before me to show that any of our employee has even permitted to be dumped the Medical Waste at site then I assure this Hon'ble Court to cause immediate inquiry and to take proper remedial steps, but as on date no such material was produced before me. I deny and dispute the photographs enclosed with the memo of the petition.

10.4 It is submitted that, similarly photographs of remains of dead animals (Pg.87) are also shocking. I say and submit that, I reiterate that, I personally visited the Dumping Site as well as the surrounding area and also made inquiry with the staff I was told that by the staff that, remains of dead animals are never brought at site. I say and submit that, since the immemorial, it is the practice followed by the Municipality that, the remains of dead animals are being taken away by the persons belonging to Chamar Community and after removing skin of the dead animals, they are burring the remains of the dead animals. I also personally inquired with them and I could gather the information that they are not throwing remains of dead animals in open. Moreover, I was also informed by them that the dumping site is at the distance of about 5 kilometers from the area where the skin of dead animals (after removing skin) at the distance of about 5 kilometer and to throw there. However, for abundant caution I instructed all of them to avoid, if at all anyone is doing such type of activity and also issued the public notice in this regard. Copy of public notice is enclosed herewith and marked as ANNEXURE­R­4 to this reply.

At this stage, I say and submit that, there are about 3 Panjrapole within the radius of 3 kilometers of the site and there are all chances of throwing remains of dead animals by them or by the Juna Deesa Gram Panchayat itself cannot be ruled out. But at the cost of repetition I say and submit that no dead animals are thrown in open by the Deesa municipality and therefore the photographs produced at Pg.87 are highly disputed and denied by me.

11.   Without     prejudice   to    what    is     stated   hereinabove,        I    am





       C/SCA/19214/2015                               JUDGMENT

dealing with the memo of petition as under:­

11.1. With reference to photograph nos.1 to 3.1 of the memo of the petition, I say and submit that, the contentions are formal and hence, I do not deal with the same at this stage.

11.2. with reference to paragraph no.3.2 of the memo of petition, I say and submit that, on 24.05.2004 one Shankarlal Bhagwandas Solanki and others have filed Revision Application No.37/04 before the LD.SSRD, which came to be partly allowed and remanded to the Collector for the purpose of examining issue as stated in the said order.

11.3. With reference to paragraph no.3.3. of the memo of the petition, I say and submit that, in the remand proceeding the Collector after hearing all concerned and after making detailed inquiry reconfirmed the earlier order dated 29.12.2003 of assigning land grant vide its order dated 10.12.13 passed in Remand Case.

11.4. With reference to paragraph nos.3.4 and 3.5 of the memo of petition, I say and submit that, the present petitioners have approached the Ld.SSRD and challenged the order of Collector without joining the answering Municipality wherein ex­parte interim order of maintaining status quo was granted and therefore the Varmi Compost Plant could not be commissioned. However, now the operating agency was change and they have geared up the work of commissioning plant. I further say and submit that the Municipality has also issued work order for the compound wall and the work is in progress.

11.5. With reference to paragraph no.3.6 of the memo of the petition, I say and submit that, the petitioners have not made Deesa Municipality as party to the proceeding before the Ld.SSRD and therefore the interim of the LD.SSRD was not withing the knowledge of municipality. I say and submit that, the municipality has never violated any of the order of any authority. However, the work of commissioning of Vermi Compost Plant and application for the electricity for bore were stalled by the municipality as the interim order of the Ld.SSRD came to the notice of Municipality and waited till final disposal of the Revision Application.

11.6. With reference to the paragraph no.3.7 of the memo of the petition, I deny that the order passed by the Ld.SSRD (Ann.­ G) is illegal, arbitrary and/or without considering the material on record.

12. With reference to paragraph no.4(A) to 4(EE) of the memo of petition, are the ground set out in the support of the petition and my advocate will deal the same at the time of hearing of this petition. However, I deny that, the municipality has committed any illegality. I also deny and dispute the interpretation put forwarded by the petitioners of the rules of the solid waste management. It is also denied that the municipality is throwing any hazardous waste either medical or industrial to the site. It is also denied that the petitioner no.1 is deprived of any

C/SCA/19214/2015 JUDGMENT

Gauchar land because of grant of 10 Acres land to the Deesa municipality. It is also denied that there is a permanent Water way is at the site. It is also denied that there are any residential are situated adjoining to the land in question."

7. Learned advocate Mr.Patel for the newly joined Gujarat Pollution Control Board­respondent No.4 submitted that the respondent­Board has granted authorization under the Municipal Solid Waste (Management and handling) Rules, 2002 to set up and operate waste processing/ waste disposal facility at the land in question and while granting the authorization, various conditions are imposed upon the respondent No.3­Nagar Palika to take time bound action plan in detail to develop a land field sight as per the Rules, 2000.

8. It was submitted by the learned advocate Mr.Patel that the authorization was granted up to 2017 and thereafter, the application for renewal made by the respondent No.3 was in consideration.

9. Learned advocate Mr.Rathod at this stage submitted that the respondent No.4 has renewed the authorization for further five years on 7th June, 2019.

10. Learned Assistant Government Pleader Mr.Joshi submitted that the Collector has exercised the powers wasted in him while granting land to the respondent No.3­Nagar Palika and therefore, there is no infirmity in the impugned order passed by the

C/SCA/19214/2015 JUDGMENT

authorities.

11. Having heard the learned advocates for the respective parties and having gone through the material on record the only question which falls for consideration in this petition as to whether the respondent No.2­Collector, Banaskantha has passed the order dated 29.12.2003 for allotting the land admeasuring 10 Acres to the respondent No.3­Deesa Nagar Palika for disposal of the solid waste is in accordance with law or not.

12. On perusal of the impugned order dated 29.12.2003 and remand order dated 10.12.2013 passed by the Collector, Banaskantha as well as the order dated 22.07.2015 passed by the Special Secretary Revenue Department (Appeals) it emerges that the Collector has passed the impugned order pursuant to the Government Resolution dated 30th August, 2003 and after considering the order passed by the Supreme Court for protection of the environment and in view of the Government Resolution dated 08.12.2003 the 10 Acres of land was alloted to the respondent No.3 as per the Rules, 2000.

13. It is also come on the record that the respondent No.3­Municipality is utilizing the land in question for solid waste disposal for more than 10 years. The respondent No.3­Municipality has also commissioned a Memorandum of Undertaking with one Nandanvan Gram Udhyog in the year 2016 for disposal

C/SCA/19214/2015 JUDGMENT

of the solid waste and accordingly, the project of the solid waste management is undertaken by the agency. The respondent No.4­Gujarat Pollution Control Board has also in its affidavit­in­reply has stated that one Babubhai Keshabhai Raval resident of village Juna Deesa has filed Original Application No.36 of 2019 before the National Green Tribunal (for short 'the NGT') for raising concern with regard to pollution and the respondent No.4­GPCB is made party to that proceedings. Reliance was also placed on the application filed before the NGT to point out that the grievance raised in this petition is with regard to pollution on account of dumping of mixed garbage in the land in question.

14. In view of the above facts, the grievance raised by the petitioners in this petition with regard to the pollution in environment is subject matter of pending litigation before the NGT and therefore, the power of the Collector to grant the land for disposal of the solid waste cannot be said to be exercised erroneously. As the matter is pending before the NGT with regard to the pollution and environment, the grounds raised by the petitioners are not dealt with in details so as not to foreclose the right of the petitioners to agitate such a ground before the NGT in the pending proceedings.

15. This petition is accordingly disposed of with regard to the prayers made by the petitioner challenging the order dated 22nd July, 2015 passed by

C/SCA/19214/2015 JUDGMENT

the SSRD confirming the allotment of land to the respondent No.3 by the Collector in the year 2003 as the Collector in exercise of his powers under Section 110 of the Act, 1993 has deducted the land in question from the Gauchar land taking it as a Government land and allotted the same to the respondent No.3. Allotment of the Gauchar land for the dumping site would not amount to violation of fundamental right under Article 21 of the Constitution of India as contended by the petitioners because the respondent Nos.3 and 4 are utilizing the land in question for disposal of the solid waste according to the Rules, 2000 and if the petitioners have any grievances with regard to the disposal of the solid waste is concerned, the litigation is pending before the NGT. Therefore, the petition is not entertained so far as it relates to allotment of 10 Acres land to the respondent No.3 for disposal of the solid waste of the Deesa Town.

16. The petition is accordingly dismissed. Notice is discharged.

Order in Civil Application :

In view of the disposal of the main matter, no order is required to be passed in the Civil Application and the same is accordingly disposed of.

(BHARGAV D. KARIA, J) PALAK