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September 21st, 2006

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WASTE MANAGEMENT- ALMITRA H. PATEL vs UNION OF INDIA (A CASE STUDY)

Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:"Calibri","sans-serif";} INTRODUCTION   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 inour country. The world is facing pollution problem which is going to have a globaleffect. Waste management of solid and liquid wastes, and the ever-growing airpollution, all these three develop due to industrialisation, urbanisation andglobalisation. It's critical to adopt a broad approach in developing a workingframework for waste management. This covers the social, economic, technological,political and administrative dimensions. For example, the social dimension ofwaste management involves waste minimisation; the economic dimension involveswaste recycling; the technology dimension, waste disposal; and the politicaland 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 noneof the industries that recycle hazardous waste had any facility for safedisposal of such waste in an environmentally sound manner. Most of the environmental cases,in general, are dealt through the PIL (Public InterestLitigation), 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 maytake a serious turn if not checked immediately. The, concern of this case studyis to mention how the wastes are harmful for us if proper care for theirdisposal is not taken. The problem of waste management occurs mostly fromurbanised cities starting from household activities. The Indian Courts, Supreme aswell as High Courts, have given new dimensions to the chapter on fundamentalrights in the Constitution in general and Article 21 in particular, in favourof the people and the environment. Article 21 of our Constitution says that noperson's life can be taken away without procedure established by law. The word"life" was extended to “livelihood”, and thereafter it was extendedto rights of prisoners, pollution-free environment, safe drinking water,shelter, privacy, and the right to health etc. The expansion of Article 21enthused the public interest groups approaching the High Courts and the SupremeCourt to seek enforcement of right to have clean and safe environment againstthe polluting industries, against irreversible damage to the environment andinaction/non-action of the Government. This development has taken place withina decade, in particular, the last few years have shown the courts’ activism atits peak concerning environment. The Supreme Court has made obligations of theState to provide safe and clean environment under the Directive Principles alsoenforceable. It is not that our Indian government does not take any action ormake any law related to environment. The law in our country regarding to theenvironment has been enacted since 1927 which is Indian Forest Act, and afterthis a lot of laws were passed and enacted, but the fact is that till whatextent the countrymen follow that. And if these laws regarding environment isnot followed in spirit, it will haunt us ever.   Sources of Environmental law Theinterdependence of environmental law with other disciplines makes it a distinctbranch of law. The law relating to environment is derived from two principlesources, namely, Common law developed by courts through judicial precedents,and the statute law comprising regulations or bye laws. It is said thatenvironmental law is an amalgam of common law and statutory principles.   Almitra H. Patel v. Union ofIndia 2000(2) SCC 166 Appellants: Almitra H. Patel and Anr. Vs. Respondent : Union of India (UOI) andOrs. Hon'bleJudges: J.S.Verma, C.J., B.N. Kirpal and V.N. Khare, JJ. Subject: Environment                   Facts ofthe case: This casewas filed by Almitra H. Patel against Union of India, taking into account thepoor status of Delhi. Historic city Delhi the capital of India is one ofthe most polluted cities in the world. The authorities, responsible forpollution control and environment protection, have not been able to provideclean and healthy environment to the residents of Delhi. The ambient air is somuch polluted that it is difficult to breathe. More and more Delhities aresuffering from respiratory diseases and throat infections. River Yamuna themain source of drinking water supply is the free dumping place for untreatedsewage and industrial waste. Apart from air and water pollution, the city isvirtually an open dustbin. Garbage strewn all over Delhi is a common sight. TheDelhi municipal authority was not taking proper attention to solve the problemof hazardous waste management. This all the condition forced Almitra H. Patelto sue a case against the municipal authority of Delhi. The public of Delhi wassuffering with many diseases like respiratory, skin diseases. All the wastescoming out from the industries were emerged into river Yamuna which was the sourceof drinking water for Delhi, and these wastes affected because the Delhimunicipal authority didn’t take the proper care to manage those wastes.   Issues involved in this case: 1: Was MunicipalCorporation of Delhi responsible for the disorder in the management of thewastes which affected the people of Delhi? 2: Was there lack of safai karamcharis in MCD? 3: Was there needfor the recommendation of the Committee, and who will be the officersresponsible for implementing those recommendations which are accepted?                                 JUDGMENT:(as ordered by the court) 1. We have heard learned AdditionalSolicitor General and Shri Vellapalli, learned Senior Counsel. We consider itappropriate at this stage to constitute a Committee and to specify the specificaspects 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 MemberEngineer, CPWD 4) Mr. P. U. Asnani, (Urban Env. MemberInfrastructure 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 theCommittee shall be as under: To look into all aspects of urbansolid waste management, particularly- 1)       Examine the existing practicesand to suggest hygienic processing and waste disposal practices and proventechnologies on the basis of economic feasibility and safety which theCorporations/Government may directly or indirectly adopt or sponsor. 2)       Examine and suggest ways toimprove conditions in the formal and informal sector for promoting eco-friendlysorting, collection, transportation, disposal, recycling and reuse. 3)       To review municipal bye-laws andthe powers of local bodies and regional planning authorities and suggestnecessary modifications to ensure effective budgeting, financing,administration, monitoring and compliance. 4)       Examine and formulate standardsand regulations for management of urban solid waste, and set time-frames withinwhich the authorities shall be bound to implement the same as directed. 4. The Committee is requested togive its report as early as possible .The Committee is also requested to givesuch interim reports as it may find convenient to do so. 5. The secretarial assistance atDelhi will be provided by the Ministry of Urban Development which will alsomake all other arrangements required by the Committee for its properfunctioning while arrangements within the States/Union Territories would bemade by the State/Union Territory concerned. Expenses incurred for the purposeto the same extent would be borne at this stage by the Ministry of UrbanDevelopment and the State Governments/Union Territories concerned. The finalresponsibility for meeting these expenses would be decided later on. 6. The local authorities and StateGovernments/Union Territories concerned shall extend all cooperation andassistance to the Committee for its proper functioning.   Explanation: In the above judgments the court had decided, therewill be a committee constituted. The court also mentioned the task and therules to be followed by the committee to maintain the pollution caused by thehazardous wastes, and also mentioned that the committee should examine thesituation. The court also appointed some officers according to theirperformance in the respective services they were involved. The court made acommittee for Class I cities & the designations for the committee as mentionedabove in the judgment. The work of the committee was to examine the situationand suggest solutions according to the status of the wastes. The courts focused on the three steps reduce, reuse and recycle, andalso said the committee to promote eco-friendly situations. The court asked thecommittee to submit the report as early as possible.   ReferenceCase:   BangaloreMedical 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. TheGovernment justifying its act, by stating that the locality did not have anursing home and it was in public interest that the said lease was given. Thesame lease was challenged in this petition. The Court observed that Public Park as a placereserved for beauty and recreation was developed in 19 th and 20 th century and is associated with growth of the concept of equality andrecognition of importance of common man. Earlier it was a prerogative of thearistocracy and the affluent either as a result of royal grant or as a placereserved for private pleasure. Free and healthy air in beautiful surroundingswas privilege of few. But now it is a 'gift from people to themselves'. Itsimportance has multiplied with emphasis on environment and pollution. In modernplanning and development it occupies an important place in social ecology. Aprivate nursing home on the other hand is essentially a commercial venture, aprofit oriented industry. Service may be its motto, but earning is theobjective. Its utility may not be undermined but a park is a necessity not amere 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 thelayout in a development scheme for public park and playgrounds the sale anddisposition of which is prohibited under Sec. 38-A of Bangalore DevelopmentAuthority Act (1976). Further, the Court stated that absence of openspace and Public Park, in present day when urbanisation is on increase, ruralexodus is on large scale and congested areas are coming up rapidly, may giverise to health hazard. To say, therefore, that by conversion of a site reservedfor low lying park into a private nursing home social welfare was beingpromoted was being oblivious of true character of the two and their utility.   ILLEGAL QUANTITY OF WASTES It is difficult to assess howmuch quantity of wastes has come to our country illegally and surreptitiously.We know only the figures which have been collected by the High PoweredCommittee under the chairmanship of Dr. M.G. K. Menon for the year 1996-97 and1997-98. Most of these hazardous wastes has come after the ban imposed by theDelhi High Court and the Supreme Court. The quantum of hazardous wastes lyingat the docks/ports/ICDS for the above mentioned period is as follows:-   Waste Category   Zinc Ash Lead Ash Lead Batteries Waste Oil   Nickel Hydroxide Waste Imported in 1996-97   21976 MT   5020 MT 32561 MT   3517 MT       86 MT Waste Imported in 1997-98 9740 MT 2444 MT 7167 MT 7610 MT  1054MT The quantum of hazardous wastewhich has come to our country in spite of the ban imposed by the Courts clearlyshows-that there is something which is inherently lacking in the law withregard to the regulation and control of hazardous waste and that there is noimplementation of. the existing laws. As already mentioned above, in thepresent case the implementing authorities were totally unaware of the hazardouswaste being imported into the country, not to speak of iii proper managementand disposal in an environmentally safe manner. The State, in law, is not onlybound to implement the conditions imposed in the Basel Convention but is alsounder an obligation to implement   theamendments, if any, which are made periodically in this convention This is alsomade clear by the Supreme Court in one of its directions The State owesindependently a duty not only to protect the environment but also to find outsuch alternatives which are environmental friendly and which reduce andgradually take away the threat arising out of the effects of toxicity in theenvironment. The High Powered Committee headed by Dr. Menon is supposed to lookinto the availability of various environmentally safe alternatives, and tosuggest a list of other hazardous substances which are required to be banned orregulated over and above the list of the Basel Convention. The Supreme Courthas recently expanded the "public trust doctrine" holding that Stateis the trustee of natural resources which are by nature meant for public useand enjoyment. The State is also the trustee and is also under a legal duty toprotect the natural resources. Anybody disturbing the environing' balance andthereby causing damage to the ecology has to be made liable and should bepenalized for the same. It is described as "PolluterPays Principle” vides, Vellore Citizens Welfare Forum vs. UOI andthe Indian Council for EnvironmentalLegal Action vs. UOI . Those industries which are responsible for damageto the ecology are liable to pay not only to the individual sufferers but alsoto pay for restoring the damage done to the ecology. The Hazardous Waste (Managementand Handling) Rules, 1989 have to be brought in consonance with the BaselConvention; over and above, the Rules have to be framed by keeping in mind thealready alarming pollution level in our country, plugging the loop-holes whicherring industries take resort to. It has to be ensured that any hazardous wastewhich is ultimately permitted for import must contain all the particulars ofvarious components certified by the exporting country and the importing countryshould verify those particulars at the dock itself There should be laboratoryfacilities to check whether the informally provided on the container and in thecertificate are true and correct, if the information is found incorrect thenexporting country should be put under an obligation to take it back and pay thepenalty for sending such wastes. The laboratory facilities should havesophisticated equipment and experts. The necessary amendments in this regardshould be done in the Customs Act as well as various other laws dealingvii& the import. The industry which has imported such hazardous waste mug hasrequisite permission and the facility for safe disposal as a pre-requisitecondition. The lifting of hazardous waste from the docks/ICDS etc. should bedone in a environmentally safe manner. There should be proper record to showthat the hazardous waste has reached the industry   safely and that it was recycled in thatindustry alone and was not given | to any other traders outside. A report withregard to each consigning should remain with such industry and also with theState as well as Central Pollution Control Board. Such reports should also beavailable to the NGOs who have been working in this field. It should be seen bythe authorities that the disposal sites are maintained by the industry properlyin accordance "with the guidelines set up by the State. In case of anythreat to environment immediate steps should be taken by the concernedauthorities. The concerned NGOs should be provided and information with regardto the particulars of each industry, the hazards waste which they arereceiving, recycling and the waste which is dump in the disposal sites. Thiswill permit these NGOs to have a check' pollution level and they will be able togive warning signals to the Government as well as to the people. At this hour when the ecology isunder severe threat from rising pollution, our bio-diversity and indigenousknowledge is being Pirated our food security is in peril and our sovereignty isunder serious attention we must resist all attempts which tend to affect thelives of our people to have fresh air to breathe, to have soil free frompollution, to have safe drinking water and the flora and fauna; without whichthe life itself becomes a meaningless existence. Responsibility of the occupier forhandling of wastes (1) The occupier generating hazardouswastes listed in column (2) of the Schedule in quantities equal to or exceedingthe limits given in column (3) of the said Schedule, shall take all practicalsteps to ensure that such wastes are properly handled and disposed of withoutany adverse effects which may result from such wastes and the occupier shallalso be responsible for proper collection, reception, treatment, storage anddisposal of these wastes either himself or through the operator of a facility. (2) The occupier or any other personacting on his behalf who intends to get his hazardous waste treated by theoperator of a facility under sub-rule (1), shall give to the operator of afacility, such information as may be specified by the State Pollution ControlBoard.   REQUIREMENT FOR LEGAL FRAMEWORK The need for the legislative guidelines is thatthere must be a permanent policy as to landfill management. Even though thesupreme Court expressed the view that landfill as solid waste disposal as notthe permanent solution and suggesting compost plants as alternative method ofsolid waste management, it realised that atleast for next twenty years landfill will be the common practice for solid waste disposal. Further, the AlmitraPatel's case has shown the diverse ramifications including labour law disputesand the dispute between two statutory entities. The Supreme Court had to relyon general provisions of the Constitution of India like Fundamental Rights andDirective Principles of the State Policy to formulate the principles apart fromequally general provisions in Municipality Legislations like the construction,maintenance and cleansing of drains and drainage works and of public latrines, urinalsand similar conveniences.   MUNICIPALITIES AS CONSTITUTIONAL INSTITUTION Constitutional Amendment Municipalities werelegislative creatures with conferred powers. Part IX-A of the constitution ofIndia deals with the municipalities. The municipality is an institution ofself-government. Apart from providing for the election, finance, taxation andfunds, the part also provides for powers, authority and responsibilities of themunicipality. The provision speaks about the devolution of the responsibilitiesupon the municipalities with respect to the preparation of plan for economicdevelopment and social justice and performance of functions and theimplementation of schemes as may be entrusted including those in relation tothe matters listed in the 12 th schedule. The 12 th schedulein constitution of India enumerates important functions of urban administrationincluding urban & town planning, public health, sanitation conservancy andsolid waste management. Further the constitution also provides a committee fordistrict planning to consolidate the plans prepared by the panchayats and themunicipalities in the district and prepare a draft development plan for thedistrict as whole. It specifically contemplates that the draft development planshall have regard to apart from other matters environmental conservation.Similarly, provision for metropolitan planning committee is also provided. Thusthe constitution true to its character has made elaborate provisions empoweringthe municipalities with regard to solid waste management. However at thestatutory level there has not been any initiative to provide for legalframework. The existing rules are either framed by the court or guidelinesformulated from the judiciary.   CONCLUSION After going through the research here I come to aconclusion that how the environment is important for human life as it isdescribed in this case Almitra H. Patel vs. UOI. This case was a leading casefor 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 paidcarelessness in the Delhi Municipal Corporation. After this case the rule whichcame out as a strict work for the municipal corporations of metropolitan citiesthat helped a lot to the people of urban cities. Due to this case themanagement of hazardous wastes has been improved. In the order of this case amost important was that, the officers of the corporation have to submit thereport as early as possible and if they don’t do so then strict action will betaken against them. I thank Almitra H. Patel to contr

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