Indian Medical Association Aurangabad Vs The Union of India Ors

Judicial and Expert Members: Mr. Justice V.R. Kingaonkar, Dr. Ajay A. Deshpande

Keywords: Bio-Medical waste, Maharashtra, Bio-Medical Waste Rules 1998, fees, Notification, Rule 8(3).

Application partly granted

Dated: 22 January 2014

The Hon’ble High Court of Judicature of Bombay, Bench at Aurangabad vide its order dated 1st October 2013 has registered this Application upon transfer of the Writ Petition No.3461 of 2002,. The Application has been mainly filed to challenge the Government of Maharashtra Resolution dated 20th April 2000, stipulating authorization fees under the BioMedical Waste (Management and Handling) Rules 1998, notified under the Environment (Protection) Act 1986, to be paid by the Health Care Institutions.

The Central Government has notified the Bio Medical Waste (Management and Handling) Rules 1998 (hereinafter referred as “BMW Rules”) for Environment sound management and handling of the Bio Medical Waste in the country. As per Rule 7 of the BWM Rules 1998, as amended, the State Pollution Control Board was notified as the Prescribed Authority for the enforcement of the provisions of these Rules. Under Rule 8 of the BMW Rules, as per Sub-clause (3), every application in form (1) for grant of authorization shall be accompanied by fees as may be prescribed by the Government of State or Union Territory. State Government of Maharashtra has issued the impugned Notification dated 20th April 2000 under these provisions of the Rules which is under challenge in the present application.

The Applicants submit that the reference of the Levy of Fees in Clause (3) of Rule 8 of BMW Rules is outside the power, jurisdiction and authority of the Respondents. The Applicants further state that the Environment (Protection) Act 1986 and the provisions there under do not authorize the Respondents to levy the fees and therefore, the Applicants further state that purported empowerment under Rule 8(3) of the BMW Rules to prescribe fees is ultra virus the Statute and Rule making powers of the Respondents. The Applicants submit that Environment Department, Government of Maharashtra had earlier stipulated the Fees under Rule 8(3) of the BMW Rules vide the Government Resolution dated 9th March 1999 which have been subsequently revised vide the impugned Government Resolution. The Applicants further claim that they have made representation to the State Government clearly mentioning that there is abnormal increase in the fees for smaller hospitals and the fees are reduced for the larger hospitals. The Applicants further submit that there is no special benefit, service or privilege to the Medical practitioners/professionals wanting the increase in the fees and rendition of services and there is no rational under-laying in charging of high fees for BMW authorization.

The Applicants pray for the following:
1. It be declared that impugned rule 8(2) of the BMW Rules purportedly framed under the provisions of sections 6, 8 and 25 of the Environment (Protection) Act, 1984 is ultravires to the Environment (Protection) Act, 1986 and the same be quashed and set aside as ultravires constitution, statute and illegal and void and that the same is unenforceable and still born.
2. It be declared that change in criteria of fees structure and the quantum of levy of fees made under impugned Government Resolution dated 20-4-2000 bearing No.ENV/2000/280/ADM No.20/TAN KA 3 are ultravires the constitution of India and ultravires to the Environment Act & the BMW Rules and are illegal and void.
3. By issue of writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari, the impugned Government Resolution dated 20-4-2000 bearing No.ENV/2000/280/ADM No.20/TAN KA 3 be quashed and set aside and be declared as ultravires the Constitution of India, ultravires the Environment Act & Rules. It is unenforceable, stillborn, illegal, and void.

On perusal of the records and also submissions made by MoEF and MPCB and also, the communication from the Applicants’ organization that the issue is now settled, the Tribunal is required to see whether, in fact Law allows the authority to charge the authorization fees and also contention raised that the Bio Medical Waste is not a hazardous waste will have to be considered.

The Principal Bench, National Green Tribunal in its Judgment delivered in the Application No.63/2012 had already clarified the issue whether Bio-medical waste is a hazardous waste and the relevant paras are reproduced for ready reference :

A person who is interested in establishing and operating a plan under entry 7(d) of the Scheduled to the Notification of 2006 and is using an incinerator, alone or along with the landfill, would fall under category ‘A’ project and therefore, would require Environmental Clearance from MoEF. Bio Medical Waste undisputedly, is a hazardous waste though covered under Rules of 1998, a cumulative reading of the definition of “hazardous substance” under the Act of 1986, “hazardous waste” under Rules 2008 (particularly with reference to the schedule) and the Bio Medical Waste and such treatment facilitate under the Rules of 1998 clearly show that BMW is hazardous in nature ”

It is also noted that the Chairman, Central Pollution Control Board had issued directions U/s. 18(1)(b) of Water (Pollution and Control Board) Act 1974 to all State Pollution Control Boards vide letter No.B-29012/1/2012/ESS/1540 dated 4-6-2012, to consider the Health Care Establishment (as defined in Bio Medical Waste Rules) as Red category activity under provisions of the Water (Pollution and Control Board) Act 1974 and Air (Pollution and Control Board) Act 1981 and to bring them under consent regime. The Counsel for MPCB made statement on instructions that MPCB has started granting separate consent to the Health Care Establishments under the provisions of Water and Air Act. It is to be noted that the SPCB charge separate consent fees for the consent under the Water Act and Air Act 1981. The Health Care Establishment also needs an authorization under the BMW Rules 1998 by payment of authorization fees. Considering the above facts, the Tribunal is of the considered opinion that this matter needs to be reviewed by the MoEF for bringing uniformity in approach of the concerned Authorities and avoid double financial burden in view of levy of above two different fees.

Accordinglythe MoEF is directed to take a review in the matter and do the needful.

Considering the above, the Application is partly granted to the above extent though allowed to be withdrawn with liberty to the Applicants to approach the proper Forum to challenge the fees for Authorisation under the Bio Medical Waste (M & H) Rules, if so advised. The Application is accordingly disposed off with no costs.