The allocation of beds by the authorities under the Bio-Medical Waste Management Rules, 2016 is based on distance criteria and administrative discretion, and the proper treatment and disposal of waste within the specified time frame is crucial.

JUDGMENT :

SABYASACHI BHATTACHARYYA, J.

1. The petitioner no. 1 is a Common Bio-Medical Waste Treatment Facility (hereinafter referred to as “CBMWTF”) and the petitioner no. 2 is its Director. The present challenge has been thrown against an order issued by the Senior Special Secretary, Government of West Bengal, Health and Family Welfare Department, HS (MS) Branch dated August 11, 2023. By the said order, in super-session of all previous orders, the existing assignment of CBMWTFs as adopted in 2019with respect to lifting, transportation, treatment and disposal of bio-medical wastes generated in different public health facilities across the State will be reallocated based on distance criteria as per Annexure – A thereto. All the health facilities in the State along with other entities generating bio-medical waste will be tagged with the existing and operational CBMWTF facilities authorised by the West Bengal Pollution Control Board with effect from August 18, 2023. The arrangement is to remain valid for six months and thereafter reviewing the performance, further allocation may be done, if necessary. The zone-wise list of health facilities are specified in Annexure-B thereto.

2. The petitioners allege that by virtue of such reallocation, a large number of beds in the hospitals for which the petitioner no. 1 was working as a CBMWTF have been curtailed and allocated to respondent no. 7. It is argued that the same is violative of the Bio-Medical Waste Management Rules, 2016 (for short “the 2016 Rules”), Rule 7(3) of which states that no occupier shall establish on-site treatment and disposal facility if a service of CBMWTF is available at a distance of 75 kms. It is argued that in terms of the said Rule, a CBMWTF is to be situated within 75 kms. of the hospital and the number of beds would be 10,000. In the event of deficiency of beds, at the most an area of 150 kms. radius from the treatment plant would be covered.

3. It is argued that the impugned order violates the distance norms. The respondent no. 7 is already overburdened and in view of the additional allocation of beds, would exceed the outer limit of 30,000, which is the authorised bed in respect of respondent no. 7 in terms of the permission given by the West Bengal Pollution Control Board (WBPCB). On the other hand, the petitioner no. 1 has a permissible limit of 20,000 beds. Although the petitioners are at present covering 20,390 beds, most of the said beds are inoperative and not billed by the petitioners.

4. Thus, it is contended that the impugned Order shall create a disparity and lopsided allocation, since the respondent no. 7 would work beyond its permissible capacity whereas the petitioner no. 1 would be deprived of several beds, although its contract is running till the year 2027.

5. Learned counsel for the petitioners also argues that the respondent no. 7 does not possess valid authorisation, that is, Consent to Operate, from the concerned Authority. That apart, the respondent no. 7 does not have sufficient facility to handle the additional waste allocated to it.

6. Learned counsel appearing for the respondent no. 7 contends that the said respondent has all along been in possession of a valid licence. Even on the date of affirmation of the writ petition on August 14, 2023, it had the requisite authorisation from the WBPCB vide Memo No. 01/2S (BM)-1632/2003 (P+-1) dated November 30, 2019 which was valid till November 30, 2023. The respondent no. 7 had applied for renewal within time on October 9, 2023 which was pending for some time but subsequently was allowed on December 27, 2023. Hence, the respondent no. 7 is not only in possession of a valid authorisation by the Pollution Control Board, but it had also acted bona fide at all material times in that regard.

7. Insofar as the radius of 75 kms. extendable to 150 kms. is concerned, it is argued that the concerned provisions of the 2016 Rules apply to “occupiers” who are the medical facilities/hospitals for whom the wast