2ND YEAR(3RD SEM)
KIIT LAW SCHOOL
In this project I have researched on a very leading case Almitra H. Patel v. Union of India, which relates to legal aspects of Waste Management in our country. The world is facing pollution problem which is going to have a global effect. Waste management of solid and liquid wastes, and the ever-growing air pollution, all these three develop due to industrialisation, urbanisation and globalisation. It's critical to adopt a broad approach in developing a working framework for waste management. This covers the social, economic, technological, political and administrative dimensions. For example, the social dimension of waste management involves waste minimisation; the economic dimension involves waste recycling; the technology dimension, waste disposal; and the political and administrative dimensions cut across all the three issues of minimisation, recycling and disposal. This study shows how important is waste management, through a case study of Almitra H. Patel v. Union of India, a leading case in environmental protection. It is a shocking fact that none of the industries that recycle hazardous waste had any facility for safe disposal of such waste in an environmentally sound manner.
Most of the environmental cases, in general, are dealt through the PIL (Public Interest Litigation), and this case was also filed by Almitra H. Patel through a PIL. PIL has made others aware about the magnitude of the problem and that it may take a serious turn if not checked immediately. The, concern of this case study is to mention how the wastes are harmful for us if proper care for their disposal is not taken. The problem of waste management occurs mostly from urbanised cities starting from household activities.
The Indian Courts, Supreme as well as High Courts, have given new dimensions to the chapter on fundamental rights in the Constitution in general and Article 21 in particular, in favour of the people and the environment. Article 21 of our Constitution says that no person's life can be taken away without procedure established by law. The word "life" was extended to “livelihood”, and thereafter it was extended to rights of prisoners, pollution-free environment, safe drinking water, shelter, privacy, and the right to health etc. The expansion of Article 21 enthused the public interest groups approaching the High Courts and the Supreme Court to seek enforcement of right to have clean and safe environment against the polluting industries, against irreversible damage to the environment and inaction/non-action of the Government. This development has taken place within a decade, in particular, the last few years have shown the courts’ activism at its peak concerning environment. The Supreme Court has made obligations of the State to provide safe and clean environment under the Directive Principles also enforceable. It is not that our Indian government does not take any action or make any law related to environment. The law in our country regarding to the environment has been enacted since 1927 which is Indian Forest Act, and after this a lot of laws were passed and enacted, but the fact is that till what extent the countrymen follow that. And if these laws regarding environment is not followed in spirit, it will haunt us ever.
Sources of Environmental law
The interdependence of environmental law with other disciplines makes it a distinct branch of law. The law relating to environment is derived from two principle sources, namely, Common law developed by courts through judicial precedents, and the statute law comprising regulations or bye laws. It is said that environmental law is an amalgam of common law and statutory principles.
Almitra H. Patel v. Union of India 2000(2) SCC 166
Appellants: Almitra H. Patel and Anr. Vs. Respondent: Union of India (UOI) and Ors.
Hon'bleJudges: J.S. Verma, C.J., B.N. Kirpal and V.N. Khare, JJ.
Facts of the case: This case was filed by Almitra H. Patel against Union of India, taking into account the poor status of Delhi. Historic city Delhi the capital of India is one of the most polluted cities in the world. The authorities, responsible for pollution control and environment protection, have not been able to provide clean and healthy environment to the residents of Delhi. The ambient air is so much polluted that it is difficult to breathe. More and more Delhities are suffering from respiratory diseases and throat infections. River Yamuna the main source of drinking water supply is the free dumping place for untreated sewage and industrial waste. Apart from air and water pollution, the city is virtually an open dustbin. Garbage strewn all over Delhi is a common sight. The Delhi municipal authority was not taking proper attention to solve the problem of hazardous waste management. This all the condition forced Almitra H. Patel to sue a case against the municipal authority of Delhi. The public of Delhi was suffering with many diseases like respiratory, skin diseases. All the wastes coming out from the industries were emerged into river Yamuna which was the source of drinking water for Delhi, and these wastes affected because the Delhi municipal authority didn’t take the proper care to manage those wastes.
Issues involved in this case:
1: Was Municipal Corporation of Delhi responsible for the disorder in the management of the wastes which affected the people of Delhi?
2: Was there lack of safai karamcharis in MCD?
3: Was there need for the recommendation of the Committee, and who will be the officers responsible for implementing those recommendations which are accepted?
JUDGMENT: (as ordered by the court)
1. We have heard learned Additional Solicitor General and Shri Vellapalli, learned Senior Counsel. We consider it appropriate at this stage to constitute a Committee and to specify the specific aspects which the Committee is required to examine.
2. The Committee for Class I Cities (population over one lakh) shall consist of the following:
1) Mr. Asim Burman, (Commissioner, Chairman Calcutta Municipal Corpn.)
2) Mr. S. R. Rao, (Secretary, SSI, Member Govt. of Gujarat & ex-Commr Surat)
3) Mr. S. K. Chawla, Chief Member Engineer, CPWD
4) Mr. P. U. Asnani, (Urban Env. Member Infrastructure Rep. for India USAID and Consultant, Ahmadabad Mun. Corpn.)
5) Dr. Saroj, (Jt. Director, Member Ministry of Environment & Forests)
6) Mr. Rajat Bhargava, (Commissioner, Member Vijayawada Mun. Corpn.)
7) Mr. Yogendra Tripathi, (Dy. Secy. Member Secretary Urban Dev. MOUA & E)
8) Mrs. Almitra Patel, (Convenor, Member INTACH Waste Network)
3. The terms of Reference for the Committee shall be as under:
To look into all aspects of urban solid waste management, particularly-
1) Examine the existing practices and to suggest hygienic processing and waste disposal practices and proven technologies on the basis of economic feasibility and safety which the Corporations/Government may directly or indirectly adopt or sponsor.
2) Examine and suggest ways to improve conditions in the formal and informal sector for promoting eco-friendly sorting, collection, transportation, disposal, recycling and reuse.
3) To review municipal bye-laws and the powers of local bodies and regional planning authorities and suggest necessary modifications to ensure effective budgeting, financing, administration, monitoring and compliance.
4) Examine and formulate standards and regulations for management of urban solid waste, and set time-frames within which the authorities shall be bound to implement the same as directed.
4. The Committee is requested to give its report as early as possible .The Committee is also requested to give such interim reports as it may find convenient to do so.
5. The secretarial assistance at Delhi will be provided by the Ministry of Urban Development which will also make all other arrangements required by the Committee for its proper functioning while arrangements within the States/Union Territories would be made by the State/Union Territory concerned. Expenses incurred for the purpose to the same extent would be borne at this stage by the Ministry of Urban Development and the State Governments/Union Territories concerned. The final responsibility for meeting these expenses would be decided later on.
6. The local authorities and State Governments/Union Territories concerned shall extend all cooperation and assistance to the Committee for its proper functioning.
In the above judgments the court had decided, there will be a committee constituted. The court also mentioned the task and the rules to be followed by the committee to maintain the pollution caused by the hazardous wastes, and also mentioned that the committee should examine the situation. The court also appointed some officers according to their performance in the respective services they were involved. The court made a committee for Class I cities & the designations for the committee as mentioned above in the judgment. The work of the committee was to examine the situation and suggest solutions according to the status of the wastes. The courts focused on the three steps reduce, reuse and recycle, and also said the committee to promote eco-friendly situations. The court asked the committee to submit the report as early as possible.
Reference Case: Bangalore Medical Trust v. B. S Muddappa AIR 1991 SC 1902
(Summary of the case)
A land designated under the urban planning scheme, for a public park was leased by the state government for a nursing home. The Government justifying its act, by stating that the locality did not have a nursing home and it was in public interest that the said lease was given. The same lease was challenged in this petition.
The Court observed that Public Park as a place reserved for beauty and recreation was developed in 19th and 20th century and is associated with growth of the concept of equality and recognition of importance of common man. Earlier it was a prerogative of the aristocracy and the affluent either as a result of royal grant or as a place reserved for private pleasure. Free and healthy air in beautiful surroundings was privilege of few. But now it is a 'gift from people to themselves'. Its importance has multiplied with emphasis on environment and pollution. In modern planning and development it occupies an important place in social ecology. A private nursing home on the other hand is essentially a commercial venture, a profit oriented industry. Service may be its motto, but earning is the objective. Its utility may not be undermined but a park is a necessity not a mere amenity. A private nursing home cannot be a substitute for a public park.
In 1984, the Bangalore Development Authority Act (1976) itself provided for reservation of not less than 15% of the total area of the layout in a development scheme for public park and playgrounds the sale and disposition of which is prohibited under Sec. 38-A of Bangalore Development Authority Act (1976).
Further, the Court stated that absence of open space and Public Park, in present day when urbanisation is on increase, rural exodus is on large scale and congested areas are coming up rapidly, may give rise to health hazard. To say, therefore, that by conversion of a site reserved for low lying park into a private nursing home social welfare was being promoted was being oblivious of true character of the two and their utility.
ILLEGAL QUANTITY OF WASTES
It is difficult to assess how much quantity of wastes has come to our country illegally and surreptitiously. We know only the figures which have been collected by the High Powered Committee under the chairmanship of Dr. M.G. K. Menon for the year 1996-97 and 1997-98. Most of these hazardous wastes has come after the ban imposed by the Delhi High Court and the Supreme Court. The quantum of hazardous wastes lying at the docks/ports/ICDS for the above mentioned period is as follows:-
Nickel Hydroxide Waste Imported in 1996-97
86 MT Waste Imported in 1997-98
The quantum of hazardous waste which has come to our country in spite of the ban imposed by the Courts clearly shows-that there is something which is inherently lacking in the law with regard to the regulation and control of hazardous waste and that there is no implementation of. the existing laws. As already mentioned above, in the present case the implementing authorities were totally unaware of the hazardous waste being imported into the country, not to speak of iii proper management and disposal in an environmentally safe manner. The State, in law, is not only bound to implement the conditions imposed in the Basel Convention but is also under an obligation to implement the amendments, if any, which are made periodically in this convention This is also made clear by the Supreme Court in one of its directions The State owes independently a duty not only to protect the environment but also to find out such alternatives which are environmental friendly and which reduce and gradually take away the threat arising out of the effects of toxicity in the environment. The High Powered Committee headed by Dr. Menon is supposed to look into the availability of various environmentally safe alternatives, and to suggest a list of other hazardous substances which are required to be banned or regulated over and above the list of the Basel Convention. The Supreme Court has recently expanded the "public trust doctrine" holding that State is the trustee of natural resources which are by nature meant for public use and enjoyment. The State is also the trustee and is also under a legal duty to protect the natural resources. Anybody disturbing the environing' balance and thereby causing damage to the ecology has to be made liable and should be penalized for the same. It is described as "Polluter Pays Principle” vides, Vellore Citizens Welfare Forum vs. UOI and the Indian Council for Environmental Legal Action vs. UOI. Those industries which are responsible for damage to the ecology are liable to pay not only to the individual sufferers but also to pay for restoring the damage done to the ecology.
The Hazardous Waste (Management and Handling) Rules, 1989 have to be brought in consonance with the Basel Convention; over and above, the Rules have to be framed by keeping in mind the already alarming pollution level in our country, plugging the loop-holes which erring industries take resort to. It has to be ensured that any hazardous waste which is ultimately permitted for import must contain all the particulars of various components certified by the exporting country and the importing country should verify those particulars at the dock itself There should be laboratory facilities to check whether the informally provided on the container and in the certificate are true and correct, if the information is found incorrect then exporting country should be put under an obligation to take it back and pay the penalty for sending such wastes. The laboratory facilities should have sophisticated equipment and experts. The necessary amendments in this regard should be done in the Customs Act as well as various other laws dealing \vii& the import. The industry which has imported such hazardous waste mug has requisite permission and the facility for safe disposal as a pre-requisite condition. The lifting of hazardous waste from the docks/ICDS etc. should be done in a environmentally safe manner. There should be proper record to show that the hazardous waste has reached the industry safely and that it was recycled in that industry alone and was not given | to any other traders outside. A report with regard to each consigning should remain with such industry and also with the State as well as Central Pollution Control Board. Such reports should also be available to the NGOs who have been working in this field. It should be seen by the authorities that the disposal sites are maintained by the industry properly in accordance "with the guidelines set up by the State. In case of any threat to environment immediate steps should be taken by the concerned authorities. The concerned NGOs should be provided and information with regard to the particulars of each industry, the hazards waste which they are receiving, recycling and the waste which is dump in the disposal sites. This will permit these NGOs to have a check' pollution level and they will be able to give warning signals to the Government as well as to the people.
At this hour when the ecology is under severe threat from rising pollution, our bio-diversity and indigenous knowledge is being Pirated our food security is in peril and our sovereignty is under serious attention we must resist all attempts which tend to affect the lives of our people to have fresh air to breathe, to have soil free from pollution, to have safe drinking water and the flora and fauna; without which the life itself becomes a meaningless existence.
Responsibility of the occupier for handling of wastes
(1) The occupier generating hazardous wastes listed in column (2) of the Schedule in quantities equal to or exceeding the limits given in column (3) of the said Schedule, shall take all practical steps to ensure that such wastes are properly handled and disposed of without any adverse effects which may result from such wastes and the occupier shall also be responsible for proper collection, reception, treatment, storage and disposal of these wastes either himself or through the operator of a facility.
(2) The occupier or any other person acting on his behalf who intends to get his hazardous waste treated by the operator of a facility under sub-rule (1), shall give to the operator of a facility, such information as may be specified by the State Pollution Control Board.
REQUIREMENT FOR LEGAL FRAMEWORK
The need for the legislative guidelines is that there must be a permanent policy as to landfill management. Even though the supreme Court expressed the view that landfill as solid waste disposal as not the permanent solution and suggesting compost plants as alternative method of solid waste management, it realised that atleast for next twenty years land fill will be the common practice for solid waste disposal. Further, the Almitra Patel's case has shown the diverse ramifications including labour law disputes and the dispute between two statutory entities. The Supreme Court had to rely on general provisions of the Constitution of India like Fundamental Rights and Directive Principles of the State Policy to formulate the principles apart from equally general provisions in Municipality Legislations like the construction, maintenance and cleansing of drains and drainage works and of public latrines, urinals and similar conveniences.
MUNICIPALITIES AS CONSTITUTIONAL INSTITUTION
Constitutional Amendment Municipalities were legislative creatures with conferred powers. Part IX-A of the constitution of India deals with the municipalities. The municipality is an institution of self-government. Apart from providing for the election, finance, taxation and funds, the part also provides for powers, authority and responsibilities of the municipality. The provision speaks about the devolution of the responsibilities upon the municipalities with respect to the preparation of plan for economic development and social justice and performance of functions and the implementation of schemes as may be entrusted including those in relation to the matters listed in the 12th schedule. The 12th schedule in constitution of India enumerates important functions of urban administration including urban & town planning, public health, sanitation conservancy and solid waste management. Further the constitution also provides a committee for district planning to consolidate the plans prepared by the panchayats and the municipalities in the district and prepare a draft development plan for the district as whole. It specifically contemplates that the draft development plan shall have regard to apart from other matters environmental conservation. Similarly, provision for metropolitan planning committee is also provided. Thus the constitution true to its character has made elaborate provisions empowering the municipalities with regard to solid waste management. However at the statutory level there has not been any initiative to provide for legal framework. The existing rules are either framed by the court or guidelines formulated from the judiciary.
After going through the research here I come to a conclusion that how the environment is important for human life as it is described in this case Almitra H. Patel vs. UOI. This case was a leading case for the management and handling the hazardous wastes on the order of the court. After this case the court brought a very strict action against those who paid carelessness in the Delhi Municipal Corporation. After this case the rule which came out as a strict work for the municipal corporations of metropolitan cities that helped a lot to the people of urban cities. Due to this case the management of hazardous wastes has been improved. In the order of this case a most important was that, the officers of the corporation have to submit the report as early as possible and if they don’t do so then strict action will be taken against them. I thank Almitra H. Patel to contribute his efficiency in this case for the benefit of public. Due to her contribution the importance of legal framework was realised.
"Loved reading this piece by Adv. Ankur Mishra
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