Gujarat High Court
Bhikhabhai Dahyabhai Jajadiya vs Bhavnagar Municipal Corporation ... on 1 October, 2021
Bench: J.B.Pardiwala
C/WPPIL/163/2020 JUDGMENT DATED: 01/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 163 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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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 ?
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BHIKHABHAI DAHYABHAI JAJADIYA
Versus
BHAVNAGAR MUNICIPAL CORPORATION NOTICE TO BE SERVED
THROUGH COMMISSIONER & 2 other(s)
=============================================
Appearance:
MR SANDIP H MUNJYASARA(10781) for the Applicant(s) No. 1
CHINTAN H DAVE(7193) for the Opponent(s) No. 2
GOVERNMENT PLEADER(1) for the Opponent(s) No. 3
MR HS MUNSHAW(495) for the Opponent(s) No. 1
=============================================
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 01/10/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This is a petition filed in public interest by a resident of
Bhavnagar, State of Gujarat. The writ applicant has prayed for
C/WPPIL/163/2020 JUDGMENT DATED: 01/10/2021
the following reliefs in public interest:
"A) This Hon'ble Court may be pleased to allow this petition
and issue a writ of mandamus and/or any other appropriate writ,
orders or directions to quash and set aside the partly impugned
resolution dated 25.10.2019 qua decision of the Bhavnagar
Municipal Corporation to make "refuse transfer station" in
residential area (ward no.7) of the City named "CHAVADI GATE"
and subsequent development in this regard;
B) This Hon'ble Court may be pleased to issue a writ of
mandamus and/or any other appropriate writ, orders or directions
to the respondent no.3 and the respondent no.1 to prepare a
state policy along with solid waste management strategy for the
State and to prepare a solid waste management plan for the local
body respectively as per mandate of the rule 11(1)(a) and 15(a)
of the Rules of 2016 respectively.
C. Pending the hearing and final disposal of the petition, this
Hon'ble Court may be pleased to stay implementation and
operation of the resolution dated 25.10.2019 and subsequent
development in this regard as well as be pleased to direct the
respondent no.1 to take decision on petitioner's final and detailed
representation dated 10.09.2020;
D. Ad interim exparte relief in terms of above paragraph C;
E) The Hon'ble Court may grant such other reliefs as the
nature and circumstances of the case may require."
2. We take notice of the order passed by this very Bench
dated 09.07.2021. The order reads thus:
"1. We have heard Mr. Sandip Munjyasara, the learned counsel
appearing for the writ-applciant and Mr. Chintan Dave, the
learned counsel appearing for the Gujarat Pollution Control Board.
2. On 28.01.2021 this Court passed the following order:-
"1. We have heard Mr. Sandip H. Munjyasara, the
learned counsel appearing for the writ applicant.
2. Let notice be issued to the respondents returnable
on 26.02.2021. By the next date of hearing, we
expect the respondent no.2 - Gujarat Pollution
Control Board to file appropriate reply or report as
regards the subject matter of this writ application. It
will be in the fitness of things if the Bhavnagar
Municipal Corporation also files an appropriate reply
justifying the set-up of Solid Waste Management
Project in a residential area of Bhavnagar city. The
respondents shall be served directly through E-
mail."
C/WPPIL/163/2020 JUDGMENT DATED: 01/10/2021
3. Thereafter, on 25.06.2021 this Court passed the following
order:-
"A co-ordinate bench of this Court had issued notice
to the respondents vide order dated 28.01.2021
making it returnable on 26.02.2021. While issuing
notice, the co-ordinate bench observed that it would
expect the Gujarat Pollution Control Board to file
appropriate reply or report as regards the subject
matter of the present litigation. It was also observed
by the coordinate bench that it would be in the
fitness of things if the Bhavnagar Municipal
Corporation would also file appropriate reply
justifying the set-up of Solid Waste Management
Project within the residential area of the Bhavnagar
City. Almost six months have elapsed, but the reply
has not been filed.
As a last chance, post this matter on
09.07.2021. Whether the reply is filed or not, this
Court would hear the matter and decide the same
accordingly."
4. Despite the service of notice to the Bhavnagar Municipal
Corporation, none has entered appearance on its behalf. We fail
to understand why the Bhavnagar Municipal Corporation is shy in
coming before this Court with an appropriate reply. In the order
passed by this Court dated 25.06.2021, it was made very clear
that as a last chance, the matter was being adjourned and the
Court would proceed with the matter irrespective of the fact
whether reply is filed or not.
5. This litigation is in Public Interest. Today, affidavit-in-reply has
been filed on behalf of the Gujarat Pollution Control Board. The
same is ordered to be taken on record. In paragraph-5 of the
reply, the following has been stated:-
"5. In this regard, this Hon'ble Court vide order
dated 28.01.2021 had directed the present
deponent to file appropriate reply or report as
regards the subject matter of writ-application. The
present deponent in compliance with the directions
issued by this Hon'ble Court had carried out the side
inspection on 03.02.2021. From the inspection
carried out by the respondent authorities it appears
that the transfer station is located besides the
PGVCL Zonal Officer at Chavdi Gate, Bhavnagar. The
solid waste shall be transferred from primary
collection vehicles (smaller sized vehicles) to the
secondary transportation vehicles (larger sized
vehicles). Thereafter, the secondary transportation
vehicles shall dump the solid waste at the dumping
site earmarked by the respondent no.1 Bhavnagar
Municipal Corporation. On the North and East side of
the said site the Zonal Officer of PGVCL is located
C/WPPIL/163/2020 JUDGMENT DATED: 01/10/2021
whereas on the West side open land is found. On
the Southern side of the site, there is a 10 mtrs.
wide road. The residential houses are found at a
distance of approximately 15 mtrs. on the Southern
side of the site. Shree Hanuman Temple is located
at a distance of approximately 120 mtrs. towards
the North-Eastern side of the said site. Victoria Park
is located at a distance of approximately 2.20 kms.
towards South-Western Side and Bortalav Lake is
located at an approximate distance of 2.50 kms.
towards the South-Western side of the said site. It is
further submitted before this Hon'ble Court that the
said site is located within the local limits of
Industrial Zone as per the area development plan of
the Bhavnagar Area Development Authority. In the
present circumstances, the solid waste that is
generated within the jurisdiction of the respondent
no.1 Bhavnagar Municipal Corporation is collected in
primary collection vehicles (tipper vans) and is
dumped at a dumpsite located on the NorthEastern
corner of the Bhavnagar City that is at an
approximate distance of 6 to 8 kms. away from the
city. Hence, these tipper vans are compelled to
travel the said distance on a daily basis on multiple
locations for dumping the solid waste. Hence, it
appears that the commissioning of the Refuse
Transfer Station will result in considerable reduction
of fuel consumption, traffic congestion and as well
as the working hours needed for dumping solid
waste at a distant location. In this regard, the
Detailed Inspection Report is attached with this
affidavit and is annexed hereto and marked as
Annexure-A."
6. In view of the aforesaid and considering the obstinate attitude
and stance of the Corporation, we propose to pass an interim
order. We direct the Bhavnagar Municipal Corporation not to use
the dumping site earmarked by it for the purpose of solid waste
pursuant to its resolution dated 25th October 2017. The absence
of the Bhavnagar Municipal Corporation has been taken notice of
by this Court very seriously. Prima-facie, the Corporation is in
contempt.
7. Post this matter for further hearing on 23.07.2021. If the
learned counsel wants to file any rejoinder to the reply filed by
the Gujarat Pollution Control Board, he may do so by the next
date of hearing."
3. Pursuant to our order dated 09.07.2021 referred to
above, the Pollution Control Board has filed affidavit-in-reply
stating as under:
"3. It appears that the petitioner is of the considered view that
C/WPPIL/163/2020 JUDGMENT DATED: 01/10/2021
because of the erection of the refuse transfer station, the locals
of the Bhavnagar City shall be subjected to intolerable pollution.
However, the petitioner appears to be factually incorrect in
believing so. In this regard, the Senior officials of the respondent
no. 2- Gujarat Pollution Control Board personally visited the site
on 24.09.2021 where the refuse transfer station has been erected
by the respondent no. 1 Corporation. The present deponent had
also prepared a detailed inspection report in this regard. In this
regard, it is pertinent to note here that the Solid Waste across the
Bhavnagar City is collected in small sized vehicles and is brought
at the refuse transfer station. At the refuse transfer station three
static compactors are installed. The Solid Waste collected in the
small sized vehicles is unloaded in the buckets that are attached
to the said static compactors. The buckets thereafter closed and
through hoppers and pistons the solid waste is pumped / pushed
into large sized containers that are stationed on the other side of
the static compactors. The large sized containers thereafter, shall
carry the solid waste to a site located outside the local limits of
Bhavnagar City. During the inspection, the present deponent had
also observed a deodorant system installed at the top of the
shed. The said system takes care of the odor issues that are
attached to the solid waste. A copy of the detailed inspection
report along with relevant photograph and process under taken
at the refuse transfer station is annexed hereto and marked as
ANNEXURE -R1 (Colly.)
4. It is further brought to the notice of this Hon'ble Court that
most of the Municipal Corporations located across the State have
already adopted the said system of erection of refuse transfer
station. The system helps in considerable reduction of fuel
expenditure that the respective corporations are obligated to
incurred in order to manage and dispose the solid waste
generated. In the facts of the present case, as per the
instructions provided to the present deponent, the respondent
no. 1-Corporation has already incurred an approximate amount of
Rs. 9.20 crores. A copy of statement indicating the areas where
similar kind of refuse transfer stations are operational is annexed
hereto and marked as ANNEXURE-R2.
5. In light of above, it is humbly prayed by the present
deponent that the anxiety of the petitioner with regard to the
pollution has already been taken care of even prior to the filing of
the present petition. Therefore, the present petition may kindly
be disposed of in the interest of justice."
4. Thus, according to the Gujarat Pollution Control Board,
there should not be any problem permitting the Bhavnagar
Municipal Corporation to put up a refuse transfer station for
the purpose of management of the solid waste at the site-in-
question. The entire controversy which has been raised in this
litigation is only with respect to the location of the refuse
C/WPPIL/163/2020 JUDGMENT DATED: 01/10/2021
transfer station. It is not the case of the writ applicant in public
interest that such refuse transfer station cannot be put up by
the corporation. It is the case of the writ applicant that this
refuse transfer station should be put up by the Corporation
outside the revenue limits of the town of Bhavnagar.
5. According to the Pollution Control Board, the solid waste
across the Bhavnagar City would be collected in small vehicles
and those will be brought at the refuse transfer station. At the
refuse transfer station, three static compactors have been
installed. The solid waste collected in the small vehicles would
be unloaded in the buckets that are attached to the static
compactors and the buckets thereafter would be closed and
through hoppers and pistons, the solid waste would be
pumped/pushed into large sized containers that may be
stationed on the other side of the static compactors. The large
sized containers thereafter, would carry the solid waste to a
site located outside the local limits of the Bhavnagar City.
6. As against the above, Mr. Munjyasara, the learned
counsel appearing for the writ applicant has invited our
attention to the averments made in paragraph 8 of the
affidavit-in-rejoinder filed by his client to the affidavit-in-reply
filed by the Bhavnagar Municipal Corporation. Paragraph 8
reads thus:
"8. With respect to para 12 and 14 of the affidavit-in-reply filed
on behalf of the BMC, the petitioner respectfully submits that the
BMC has claimed that No Permission/ No Objection Certificate is
to be obtained from the GPCB for implementation of the project
at the site in question and therefore, it is not approached so far.
Further, there is no question of any process at the site in question
as RTS meant only to transfer the solid waste of entire Bhavnagar
city from smaller to larger sized vehicles. In this regard, the
petitioner humbly submits that the BMC deliberately tries to
mislead and misguide this Hon'ble Court by way of suppressing
C/WPPIL/163/2020 JUDGMENT DATED: 01/10/2021
the material facts about the phase between transferring the solid
waste from smaller seized vehicles (tipper van) to larger sized
vehicles. Such phase is known as "process/treatment" wherein
dry waste will be transferred from smaller sized vehicles (tipper
vans) to tipping cart of static compaction unit of the RTS. Upon
receiving the dry waste, the tipping cart will transfer the dry
waste into the hopper using the hydraulic system. The dry waste
will be temporarily stored at the bottom of the hopper and in the
area available before the compaction house. Then, the piston
from the compaction unit will compact and push the dry waste
into the container placed on the rear end. Once the container is
full, it will be loaded on the larger sized vehicles. Same
treatment/process will be followed in case of transferring wet
waste from smaller sized vehicles (tipper van) to larger sized
vehicles. Hence, the statutory provisions as envisaged in rule 15,
16 and 19 of the Rules of 2016 must be followed by both the BMC
and the GPCB. Annexed hereto and marked as ANNEXURE - P (Pg.
No.262-263) are photographs of some of the machinery installed
at the site in question."
7. The learned counsel thereafter, invited our attention to
the Solid Waste Management Rules, 2016. Rule 3(18) defines
"door to door collection", the same reads thus:
"18. "door to door collection" means collection of solid waste
from the door step of households, shops, commercial
establishments , offices , institutional or any other non residential
premises and includes collection of such waste from entry gate or
a designated location on the ground floor in a housing society ,
multi storied building or apartments , large residential,
commercial or institutional complex or premises;."
7.1 Rule 3(19) defines "dry waste", the same reads thus:
"19. "dry waste" means waste other than bio-degradable waste
and inert street sweepings and includes recyclable and non
recyclable waste, combustible waste and sanitary napkin and
diapers, etc;"
7.2 Rule 3(20) defines "dump sites", the same reads thus:
20. "dump sites" means a land utilised by local body for disposal
of solid waste without following the principles of sanitary land
filling;
7.3 Rule 3(22) defines "facility", the same reads thus:
"22. "facility" means any establishment wherein the solid waste
management processes namely segregation, recovery, storage,
collection, recycling, processing, treatment or safe disposal are
carried out;"
7.4 Rule 3(34) defines "primary collection", the same reads
C/WPPIL/163/2020 JUDGMENT DATED: 01/10/2021
thus:
"34. "primary collection" means collecting, lifting and removal of
segregated solid waste from source of its generation including
households, shops, offices and any other non-residential
premises or from any collection points or any other location
specified by the local body;"
7.5 Rule 3(53) defines "treatment", the same reads thus:
"53. "treatment" means the method, technique or process
designed to modify physical, chemical or biological
characteristics or composition of any waste so as to reduce its
volume and potential to cause harm;"
7.6 Rule 3(46) defines "solid waste", the same reads thus:
"46. "solid waste" means and includes solid or semi-solid
domestic waste, sanitary waste, commercial waste, institutional
waste, catering and market waste and other non residential
wastes, street sweepings, silt removed or collected from the
surface drains, horticulture waste, agriculture and dairy waste,
treated bio-medical waste excluding industrial waste, bio-
medical waste and e-waste, battery waste, radio-active waste
generated in the area under the local authorities and other
entities mentioned in rule 2;"
8. The learned counsel thereafter, invited the attention of
this Court to Rule 15 which lays down the duties and
responsibilities of the local authorities and village panchayats
of census towns and urban agglomerations with respect to the
solid waste management. Rule 19 provides for the criteria for
duties regarding setting up solid waste processing and
treatment facility.
9. In the last, the learned counsel invited the attention of
this Court to Rule 20 which provides for the criteria and actions
to be taken for solid waste management in the hilly areas. We
reproduce Rule 20 herein below because the learned counsel
has to say something in this regard:
"20. Criteria and actions to be taken for solid waste
management in hilly areas.- In the hilly areas, the duties and
responsibilities of the local authorities shall be the same as
mentioned in rule 15 with additional clauses as under:
C/WPPIL/163/2020 JUDGMENT DATED: 01/10/2021
(a) Construction of landfill on the hill shall be avoided. A transfer
station at a suitable enclosed location shall be setup to collect
residual waste from the processing facility and inert waste. A
suitable land shall be identified in the plain areas down the hill
within 25 kilometers for setting up sanitary landfill. The residual
waste from the transfer station shall be disposed of at this
sanitary landfill.
(b) In case of non-availability of such land, efforts shall be made
to set up regional sanitary landfill for the inert and residual
waste.
(c) Local body shall frame Bye-laws and prohibit citizen from
littering wastes on the streets and give strict direction to the
tourists not to dispose any waste such as paper, water bottles,
liquor bottles, soft drink canes, tetra packs, any other plastic or
paper waste on the streets or down the hills and instead direct
to deposit such waste in the litter bins that shall be placed by
the local body at all tourist destinations.
(d) Local body shall arrange to convey the provisions of solid
waste management under the bye-laws to all tourists visiting the
hilly areas at the entry point in the town as well as through the
hotels, guest houses or like where they stay and by putting
suitable hoardings at tourist destinations.
(e) Local body may levy solid waste management charge from
the tourist at the entry point to make the solid waste
management services sustainable.
(f) The department in- charge of the allocation of land
assignment shall identify and allot suitable space on the hills for
setting up decentralised waste processing facilities. Local body
shall set up such facilities. Step garden system may be adopted
for optimum utilisation of hill space."
10. The argument of the learned counsel appearing for the
writ applicant is that the refuse transfer stations are
permissible only in the hilly areas and not at any other place.
We are not impressed with such submission of the learned
counsel. The Rules 2016 nowhere prohibits the corporation
from setting up a refuse transfer plant at a particular place in
the city or town.
11. It appears that the solid waste which may be brought in
future at the subject refuse transfer station is not to undergo
any specified treatment. All that is going to happen at the
C/WPPIL/163/2020 JUDGMENT DATED: 01/10/2021
refuse transfer station is the transport of the solid waste in
large vehicles. Although, the learned counsel made an attempt
to point out that the solid waste that may be brought to the
refuse transfer station will undergo some treatment leading to
pollution yet the Gujarat Pollution Control Board is very clear in
this regard that the same would not lead to any pollution.
12. In such circumstances referred to above, we should now
permit the Bhavnagar Municipal Corporation to go ahead with
its project of putting up the refuse transfer station at the place
which has been earmarked for the same. It goes without
saying that the entire installation of the same including the
maintenance all through out shall be strictly in accordance
with the Rules, 2016 which we have referred to above.
13. We also direct the Gujarat Pollution Control Board to
undertake periodical inspection of this refuse transfer station
so as to ensure that the same is not leading to any pollution in
any manner. We leave it open for any citizen of this area to
bring it to the notice of the appropriate authority in accordance
with law, if in future it is noticed that the refuse transfer station
is creating problems for the people residing within the vicinity
of the same.
14. With the aforesaid, this writ application stands disposed
of. The interim relief, earlier granted, stands vacated.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
NEHA
