M/s. Biotic Waste Ltd. vs Union Of India & Ors.

[PER: NITIN B. SURYAWANSHI, J.]

Rule. Rule is made returnable forthwith. Heard finally with the consent of the learned Advocates for the parties.

The Petitioner is a Limited Company engaged in the business of Biomedical Waste Management and claims to have huge experience of more than 20 years in the said field. The petitioner claims that since the Management of Biomedical waste is having significant importance with reference to health of public at large, it has upgraded itself by resorting to the use of latest Technology / Machinery / Infrastructure for disposing of biomedical waste.

The Petitioner has filed this Petition under Article 226 of the Constitution of India seeking following reliefs:

The Petitioner has approached this Court in the following facts:

Contract to establish and operate Common Biomedical Waste Treatment Facility ( for short “CBWTF”) was awarded by Respondent No.6 – Municipal Corporation for a period of 20 years i.e. from 2003 to 2023 to M/s Watergrace Products on Built Operate and Transfer (for short “BOT”) basis. The said Company set up the facility at village Georai Tanda, Paithan Road, Chhatrapati Sambhaji Nagar. It was the sole facility serving all the Heath Care facilities in the Chhatrapati Sambhaji Nagar district. Since the said facility was not being operated properly, and was not upgraded and as there were repeated violations of the norms prescribed in that behalf and as there was a public outcry, the Corporation and Respondent No.7 District Level Monitoring Company (DLMC) for CBWTF, decided not to extend the contract of the said Company.

Municipal Corporation invited Expression of Interest (for short EOI) for appointment of operator for establishment of CBWTF on BOT basis, on 8^th February, 2024. The Petitioner expressed its interest. Thereafter, Tender was floated under the supervision of DLMC on 13^th March, 2024 for establishment of CBWTF for the entire Chhatrapati Smbhaji Nagar district. The successful bidder was to establish CBWTF, for disposal of Biomedical Waste by procuring suitable land and with advanced technology. The facility, which was being operated by M/s Watergrace Products for the district was kept in operation till the new CBWTF gets functional by the selected bidder.

The petitioner claims that Respondent No.8 is a sister concern of M/s Watergrace Products. They both did not participate in the tender process. However, M/s Watergrace Products filed Writ Petition No. 7446 of 2024 challenging the Tender process, on the ground that some of the terms of the Tender are tailor-made. This Court dismissed the Writ Petition No. 7446 of 2024, on 5^th August, 2024.

In the tender process, the Petitioner emerged as the highest bidder and was selected through transparent tender process. DLMC appointed the Petitioner as operator for the establishment of the facility for management of the Biomedical Waste, for the entire District. The Petitioner is intending to set up the facility at Auric. Shendra, which is the notified Industrial Aera in Chhatrapati Sambhaji Nagar.

The Petitioner claims that though Respondent No.8 Company did not participate in the tender process, was aware of the same. With the view to defeat the Petitioner’s rights and to frustrate the entire tender process, Respondent No.8 moved an application before Respondent No.3 – Maharashtra Pollution Control Board (“Board” for short), seeking ‘Consent To Establish’ (for short “CTE”) Biomedical Waste facility for additional facility at Chhatrapati Sambhaji Nagar. The Petitioner claims that the Board, without following the guidelines and in unusual haste, granted CTE in favour of Respondent No.8, by order dated 20^th July, 2024. While granting CTE to Respondent No.8, neither the mandatory Gap Analysis was conducted nor the aspect of coverage area was taken into consideration by the Board. The Board was well aware about the tender process undertaken by the Municipal Corporation and the DLMC and the selection of the Petitioner in the said process, as the Sub Regional Officer of the Board is a Member of the DLMC. The Petitioner further contends that, on coming to know about the attempts of Respondent No.8 to obtain the CTE, the Corporation forwarded several communications to the Board, so also to Respondent No.5 – The State Expert Appraisal Committee (SEAC) requesting not to issue CTE and Environmental Clearance (EC) in favour of anybody, as the Tender process was going on.

In the meanwhile, ‘Consent to Operate’ (CTO) of the existing facility had expired and, therefore M/s Watergrace Products had submitted an application for renewal of CTO, to the Board. After the tender was allotted to the Petitioner and the Work Order was issued, the Corporation took possession of the existing facility operated by M/s Watergrace Products and submitted application dated 6^th December, 2024 to the Board to grant CTO in respect of the existing facility. The Board, by order dated 2^nd July, 2025 granted CTO in respect of the existing facility in favour of the Corporation with effect from 31.01.2020 to 31.12.2025, till the establishment of the new CBWTF in Chhatrapati Sambhaji Nagar district. This order was modified by order dated 3^rd July, 2025 and the words “Till establishment of New CTF (CBWTF) in Chhatrapati Sambhaji Nagar District” were deleted by the Board. Subsequently, by order dated 31^st December, 2025, the Board renewed combined consent and BMW Authorisation (CCA) for a period from 01/01/2026 to 31/12/2026. The Petitioner claims that the order 3^rd July, 2025 was issued by the Board at the instance of Respondent No.8.

In the meeting dated 30^th September, 2024 of the DLMC, it was resolved that the existing facility, which was being operated by M/s Watergrace Products, would be transferred to the Municipal Corporation first and, thereafter the same would be transferred to the Petitioner, as the Petitioner is appointed as the new operator in the Tender process. It was further resolved that the Board would co-operate in the matter of transfer of the existing facility to the Petitioner. In the said meeting, the Sub Regional Officer of the Board was asked as to why CTE is granted in favour of Respondent No.8. He informed that, the CTE is given by the State Level Committee and appropriate steps would be taken for cancellation of the said CTE, by appraising it to the State Level Committee about the subsequent developments. It is also recorded in the Minutes of the said Meeting that, though the Sub Regional Officer was aware about the developments in the tender process, the Board had submitted proposal of Respondent No.8 to the Head Office of the Board, without prior permission of the DLMC.

On issuance of the Letter of Award and Work Order dated 14^th October, 2024, the Corporation requested the Board, by communications dated 28^th October, 2024 and 11^th November, 2024, to grant CTE in favour of the Petitioner, to operate the existing facility taken over by the Corporation. Since there was no response from the Board, similar request was again made on 22^nd November, 2024.

The Petitioner contends that the Board, without any jurisdiction or any authority to interfere in the tender process conducted by the Corporation and the DLMC, issued communication dated 21^st January, 2025 to the Corporation as well as Respondent No. 8 Company, thereby directing the Corporation to instruct the Petitioner to stop collection of waste and to allow Respondent No. 8 Company to collect the Biomedical Waste and undertake further process of its treatment. This, according to the Petitioner, shows collusion between the Board and Respondent No.8 Company. The Corporation, by communication dated 23^rd January, 2025, requested the Board to recall the said communication dated 21^st January, 2025 and grant an opportunity of hearing to it. The Petitioner challenged the said communication dated 21^st January, 2025, by filing Writ Petition No. 1296 of 2025. Subsequently, Writ Petition No.1296 of 2025 came to be disposed of as withdrawn.

In the meanwhile, by following due procedure of law, the Petitioner applied to the Board to grant CTE for the facility at proposed place, by annexing NOC issued by the Corporation.

By the impugned order, the Board, knowing fully well that the Petitioner is awarded the Tender by the Corporation, rejected the application of the Petitioner for grant of CTE, on the ground that there is no Gap Analysis Report in the case of the Petitioner, therefore, in view of the guidelines and memorandum dated 31^st July, 2024, received from Respondent No.1 – Ministry of Environment, the Petitioner’s case cannot be considered.

SEAC recommended issuance of EC to Respondent No.8 on 13^th August, 2025. The Petitioner claims that the same is based on false statement made by Respondent No.8 that, there is no authorized existing facility within the radius of 75 kms from his proposed site and it is the sole proposed CBWTF that has obtained CTE from the Board.

After the EC was granted in favour of Respondent No.8, the Petitioner moved Civil Application for amendment and interim relief. This Court, by a detailed order dated 24^th September, 2025, granted interim relief that, during the pendency of the present Petition, no further steps shall be taken by the Board and Respondent No. 8, in pursuance of the EC dated 13^th September, 2025, granted by SEIAA in favour of Respondent No.8.

The Petitioner, being aggrieved by the grant of CTE and EC in favour of Respondent No.8 and denial of CTE in favour of the Petitioner, has approached this Court, by raising several grounds, inter alia, contending that, the Board has committed serious error in granting CTE in favour of Respondent No.8, when it was well aware that the CBTWF was operating at Patoda by the Corporation or the Petitioner, which is within 75 kms radius from the proposed facility of Respondent No.8. The Sub Regional Officer of the Board is the Member of the DLMC, who was privy to the entire tender process being conducted under the supervision of the said Committee. Hence the Board was well aware and was repeatedly informed by the Corporation not to grant CTE in favour of other company, as the tender process was going on.

The Petitioner further contends that NOCs from the local authorities were not submitted by Respondent No.8 along with its proposal for grant of CTE. Without conducting Gap Analysis and accepting a false statement made by Respondent No.8 that no other authorized facility is collecting bio-medical waste from the jurisdiction (all talukas of Chhatrapati Sambhaji Nagar) within the radius of 75 km of the proposed site, CTE is granted to Respondent No.8. The Board has acted in discriminatory manner, as the application of the Petitioner is rejected on the ground that no Gap Analysis was done, however, without the Gap Analysis being done, CTE is granted to Respondent No.8. According to the Petitioner, Gap Analysis is not applicable to the case of the Petitioner, as the proposal of the Petitioner is for replacement of the existing facility. The Petitioner contends that Respondent No.8 who did not participate in the tender process, in collusion with the Board, has obtained CTE from the Board only with a view to frustrate the public tender process. Respondent No.8 also obtained EC from SEIAA, by making incorrect statement that, there is no authorized existing facility within the radius of 75 kms from his proposed site and it is the sole proposed CBWTF that has obtained CTE from the Board. According to the Petitioner, the remedy of approaching the National Green Tribunal is not an efficacious remedy, in the facts of the present case.

The Board has opposed the Petition by filing affidavit in reply and has denied all the allegations made by the Petitioner. The sum and substance of the reply filed by the Board is that, the application for renewal of existing facility of M/s. Watergrace Products was refused since the said Company failed to comply with the rules, regulations and the Guidelines. Hence, respondent No.8 was granted consent as its application was found to be in accordance with the CPCB Guidelines. It is contended that after the letter dated 31^st July, 2024 was received from the Ministry of Environment, Forest and Climate Change, the Board has not granted any new Consent to Establish (CTE) in Maharashtra. It is further stated that by the said letter dated 31^st July, 2024, the MoEF & CC directed that the provisions of the Rules of 2016 and Guidelines issued by CPCB for Common Biomedical Waste Treatment and Disposal Facilities shall be complied with in the letter and spirit. It mandates that before establishing any new additional CBWTF for a locality or region, Gap Analysis report shall be prepared and submitted to the said Ministry for its consent, if any, as prescribed in the Guidelines. The Board has admitted that the petitioner's application dated 8^th April, 2025 was received by the Board. So far as, the said application is concerned, report of Gap Analysis is awaited. The order dated 26^th August, 2025 thereby refusing the petitioner Consent to Establish is in compliance of the letter dated 31^st July, 2024 issued by the MoEF & CC. As per the agreement between Petitioner and the Municipal Corporation, it was proposed to establish Common Treatment Facility (for short ‘CTF’) for Chhatrapati Sambhajinagar District. As per the Rules of 2016, it is statutory duty of the Municipal Corporations to provide or allocate suitable land for development of Common Biomedical Waste Treatment Facility within their respective jurisdiction, in accordance with the Guidelines of the Central Pollution Control Board. However, in the case of the Petitioner, jurisdiction proposed by the Corporation for the proposed Facility is beyond Municipal Corporation demarcable jurisdiction.

The Board has also placed reliance on the order passed by the National Green Tribunal in Original Application No.51 of 2022, wherein opinion is expressed by the Tribunal that as per the Rules of 2016, criteria is to have minimum one such Facility. It has, therefore, contended that, if there is more than one facility, it does not mean that it would amount to violation of the Rules of 2016. It is stated that the intention of the legislature is that minimum one CBWTF should be established within 75 kms area. It is further stated that the Petitioner can approach the National Green Tribunal, by filing Appeal, challenging the order of the Board of refusing grant of CTE to the Petitioner.

Respondent No.9 Central Pollution Control Board has also filed affidavit-in-reply stating that as per paragraph No.2 of the Guidelines of 2016 and 2025, Gap Analysis report is mandatory. It is stated that, in case any coverage area requires any additional treatment capacity, in such case, action may be initiated by the prescribed Authority for allowing a new CBWTF in that locality based on the Gap Analysis report, without interfering coverage area of the existing CBWTF. These guidelines are communicated to all the State Pollution Control Boards and Pollution Control Committees (for short ‘SPCB/PCC’) vide letters dated 20/02/2017 and 16/04/2025 to ensure implementation of CPCB Guidelines issued on 21/12/2016 and 12/04/2025. Respondent No.9 has also prepared methodology to prepare Gap Analysis with respect to generation and treatment of biomedical waste, and in view of that, to avoid ambiguity and maintain uniformity in conducting Gap Analysis, the SPCBs/PCCs are required to follow said criteria which is based on Gap Analysis with respect to coverage area of the biomedical waste generation, its projection for a period of next ten years and adequacy of existing treatment capacity for the CBWTF in each coverage area of radius of 75 Kms while allowing any new CBWTF. The said methodology is circulated to all SPCBs/PCCs vide letter dated 10^th October, 2023. In response to the said letters, only 12 SPCBs/PCCs have conducted Gap Analysis and submitted report to respondent No.9. Since there was non-uniformity and ambiguity in the said reports, respondent No.9 prepared revised methodology titled as “Methodology to Conduct gap analysis with respect to generation and treatment of biomedical waste – Revision 1” with an aim to have uniformity in the method of carrying out Gap Analysis and the same was forwarded to all SPCBs/PCCs along with the letter dated 12^th December, 2024 requesting to revise/conduct Gap Analysis in the concerned State/UT using revised methodology and directed to submit the report within one month. Respondent No.9 made follow-up communications with SPCBs/PCCs including respondent No.3 Board by letter dated 06/10/2025. By letter dated 11/12/2024, respondent No.9 issued directions to all the SPCBs/PCCs to ensure that there is no gap in biomedical waste generation and treatment by ensuring adequate numbers / capacity of Treatment Facilities in the State/UT and submit Gap Analysis report to respondent No.9 in respect of biomedical waste generation and treatment.

Respondent No.8 Company has opposed the petition by filing affidavit-in-reply, stating that the Environmental Clearance order granted in favour of it can be challenged before the National Green Tribunal under Section 16 of the National Green Tribunal Act. It is contended that the petitioner has made baseless allegations on assumptions and presumptions. Petitioner has raised disputed questions of facts and challenged the competency of respondent No.8 to process the biomedical waste, when its proficiency is recognized by respondent No.3 Board. It is denied that M/s. Watergrace Products, a proprietary firm which was earlier operating the CBWTF, is sister-concern of respondent No.8 Company. The proprietor of said firm has less than one percent share in respondent No.8 Company. It has obtained all the necessary permissions to process biomedical waste. Denying contentions of the petitioner that incorrect/false statement is made by respondent No.8, it is stated that, at the relevant time, although the petitioner was appointed as operator of existing CBWTF owned by the Municipal Corporation, the petitioner's application for grant of Consent to Operate was refused by the Board on 04/12/2024, on the ground that existing facility does not meet the requirement of the Rules of 2016 and the revised Guidelines issued by the CPCB, so also, the Environmental Clearance for the Facility was not submitted. Thereafter, closure notice was issued by the Board to the said Facility owned by the Municipal Corporation, which was being operated by the petitioner at that point of time. It is, therefore, contended that there was no Facility legally available. In this scenario, respondent No.8 did not participate in the tender process, considering the revised scope of work in the said tender which included treatment of solid and hazardous wastes.

In respect of 75 Kms radius criteria, it is stated that there are many consumers, local bodies and industrial estates including MIDC, wherein biomedical waste is generated and collected and if such analogy is used, their rights will also be hampered adversely. It is further contended that respondent No.8’s fundamental rights guaranteed under Article 19 (1) (g) of the Constitution of India, will be hampered if the petitioner's prayers are allowed. Instead of competing in open market, petitioner is using litigation as a tool to defeat rights of respondent No.8. Present petition is an abuse of judicial process, which prejudices rights of respondent No.8 and also adversely affects public health services and environmental compliance in the concerned region, which depend upon the timely establishment of respondent No.8. Denying the allegation of petitioner that respondent No.8 started to secure permissions from the Board for setting up CBWTF, it is stated that on 27/09/2023 respondent No.8 had taken steps towards purchase of land for establishment of CBWTF, which was prior to the issuance of tender by the Municipal Corporation on 13/03/2024. It is, therefore, submitted that the writ petition may be dismissed with costs.

The Municipal Corporation, though has not filed any affidavit-in-reply, it has supported the case of petitioner. Learned advocate of the Corporation submitted that since the petitioner has annexed all the correspondence made by the Corporation to the SEAC, including minutes of the meeting of DLMC, so as to avoid repetition, the said documents are not placed on record. It is contended that, time and again, the Corporation has requested the Board not to grant CTE in favor of respondent No.8, as the Municipal Corporation was conducting the tender process and if such CTE is granted, it would adversely affect the interest of public at large. It is submitted that respondent No.8 did not participate in the tender process, but with an intention to frustrate the said process, it has obtained CTO from the Board, without NOC from the Municipal Corporation or DMLC. By inviting our attention to clause (XVIII) of the Combine Consent to Establish and Bio Medical Waste Authorization, it is submitted that respondent No.8 was not issued NOC by the Municipal Corporation as contemplated under the said clause. As per the guidelines of CPCB, there should be no existing Facility within 75 Kms radius. It is submitted that all Talukas in Chhatrapati Sambhajinagar District jurisdiction are within the radius of 75 Kms. The Municipal Corporation undertook the tender process for the entire District. It is further submitted that the petitioner's application was rejected since the Gap Analysis report was awaited, however, consent was granted in favour of respondent No.8 in absence of Gap Analysis report. It is further submitted that no CTE would be issued in favour of the petitioner as long as CTE is given in favour Respondent No.8, who alone would be entitled to operate CBWTF within the radius of 75 kms of its facility. While granting consent in favor of respondent No.8, the Board has ignored that the Petitioner is operating the Municipal Corporation's existing Facility and therefore, consent should not have been granted to respondent No.8. The deficiencies pointed out by the Board in the case of petitioner can be removed in the new Facility of the petitioner.

It is further submitted that the right to carry out business is not absolute and for ensuring public safety and in the public interest, reasonable restrictions can be imposed. Respondent No.8 has no right to carry out such business without following the restrictions.

We have heard learned Advocate for petitioner, learned AGP for State, learned Advocate for Respondent No.1, learned Advocate for respondent No.6, learned Senior Advocate for Respondent No.8, learned Advocate for respondent No.3, learned Advocate for Respondent No.9 and learned Advocates for the intervenors, at length and carefully considered their submissions. Perused the Writ Petition memo, annexures thereto, affidavit in reply filed by the respective Respondents, Civil Applications filed by the intervenors and the citations relied on by the parties. We have given thoughtful consideration to the submissions advanced at Bar.

Following are the relevant events, which are required to be considered for deciding the controversy at hand:-

22 . Admittedly, establishment of CBWTF is covered under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981. The Rules of 2016 and CBPC Guidelines prescribe the procedure for establishment of CBWTF.

The CPCB in its reply has mentioned the mandatory guidelines for development of new CBWTF disposal facility, which are revised on 21/12/2026. The relevant guidelines are as follows:-

The Guidelines were amended on 12^th April, 2025, wherein paragraph No.2 remained same except that the methodology of conducting Gap Analysis was provided vide sub-para 2(b), which is as follows:-

This methodology was submitted to all SPCBs / PCCs on 10/10/2023 with a request to conduct of Gap Analysis and they were expected to submit a report in respect of Gap Analysis with respect to generation and treatment of biomedical waste to CPCB. It is further clear from the reply of respondent No.9 CPCB that only 12 SPCBs / PCCs have conducted Gap Analysis which shows non-uniformity and ambiguity with regard to method for extrapolating data on biomedical waste generation and requirement of adequate treatment capacity. Therefore, respondent No.9 CPCB issued revised methodology titled as “Methodology to Conduct gap analysis with respect to generation and treatment of biomedical waste – Revision 1” and circulated it to all the SPCBs/PCCs by letters dated 12/12/2024 and 16/04/2025. All SPCBs/PCCs including MPCB were forwarded the letter dated 06/10/2025 for conducting gap analysis.

Indisputably, the Corporation had awarded the contract to establish CBWTF at Georai Tanda, Patoda Shivar to M/s Watergrace Products for a period of 20 years i.e. from 2003 to 2023. In the letter dated 23^rd January, 2025, addressed by the Corporation to the Chairman of the Board it is mentioned that Star Question No.21738 was raised on the floor of the Assembly and the Leader of Opposition had expressed serious displeasure about the style of functioning of M/s Watergrace Products. Various questions were raised in respect of manner and functioning of the said Company in various news items. In reply to Star Question No. 21738, the Government had assured to the House that, the tender process would be initiated through the Corporation and new Agency would be employed as early as possible, which would manage the biomedical waste, by adopting modern technology. The newly selected agency would erect the project of processing biomedical waste, by adopting the modern technology, at the earliest. The day on which the Tender process would be completed, on that day the contract with M/s Watergrace Products would be cancelled and the work would be allotted to the new agency. M/s Watergrace products was given 2 Acre of land by the Corporation to establish CBWTF, however, only half Acre land is utilized by it. Serious irregularities were noticed in the functioning of M/s Watergrace Products during the inspections by the Medical Officer for which repeatedly show cause notices were given to it. The CTO granted in favour of M/s Watergrace Products has expired in January, 2020 and the Company has applied for renewal. M/s Watergrace Products, however, failed to remove the deficiencies pointed out by the Board and also failed to pay penalty imposed by the Board. Since the said Company failed to follow the criteria laid down by the Board, the CTO granted in favour of it was cancelled on 13^th July, 2023.

The record indicates that, before the contract with M/s Watergrace Products came to an end on 13^th June, 2022, work of new tender process commenced. A BOT committee was constituted by the Corporation and joint meetings of DMLC and the BOT Committee were being conducted to monitor the tender process.

Admittedly, when the Corporation issued EOI on 8^th February, 2024 for CBWTF on BOT basis, neither Respondent No.8 nor M/s Watergrace Products responded to it. The Corporation floated the tender for establishing CBWTF for Chhatrapati Sambhaji Nagar district, under the supervision of DLMC, of which the District Collector is the head. In the said EOI, interested companies were called upon to demonstrate as to which modern and environmental friendly technology they would adopt while treating the bio-medical waste. It is mentioned in the minutes of the meeting dated 9^th March, 2024 conducted by DMLC, BOT Committee, and attended by other officers, including Police Commissioner, Dean – Government Medical College and Hospital, Civil Surgeon, Regional Officer of the Board, Deputy Director of Town Planning, City Engineer etc. that, total 6 tenderers gave their Power Point Presentation on 26^th February, 2024

After the PPT, the BOT Committee of the Corporation came to a conclusion that the new project should be operated as per Air Plasma Gasification and Dry Incineration with Scrubbing technology. It is further recorded in the minutes of the meeting that it is not possible to erect the project on the land of the Corporation and, therefore, it will not be proper to publish tender for establishing the project on the Corporation’s land. Therefore, the tenderers, who possessed one or two Acre of land, who fulfill other terms and conditions of the tender, should be qualified to participate in the tender process. Therefore, by mentioning these requirements, draft of request for proposal (RPF) was finalized by the BOT Committee of the Corporation. The same was to be published, by incorporating the aforesaid conditions and other necessary conditions. Pursuant to the same, the Tender (RPF) was floated on 13^th March, 2024. As mentioned hereinabove, M/s Watergrace Products and Respondent No.8 did not participate in the said tender process. Admittedly, on 21^st April, 2024, Respondent No.8 applied to the Board for CTE of new CBWTF at Shendra MIDC.

After publication of the tender, the Corporation, by communication dated 3^rd June, 2024, inquired with the Sub Regional Officer of the Board, “Is it true that, it is learnt that, some of the willing agencies have applied to you for NOC for CTE?”. It is further informed that, the Corporation has already initiated the process for establishing new CBWTF and the same is in final stage and the last date of filing tender is 25^th June, 2024. It was, therefore, requested to the Board that, till the work order is issued to any company, no NOC be issued for CTE to any company.

It is also a matter of record that, M/s Watergrace Products challenged the Tender process by filing Writ Petition No. 7446 of 2024, contending that some of the terms of the tender are tailor-made. This Court, by a detail judgment dated 5^th August, 2024, dismissed the Writ Petition No. 7446 of 2024.

Though Respondent No.8 has denied that M/s Watergrace Products is its sister concern and through it the tender process was challenged, however, the record shows that the proprietor of M/s Watergrace Products is a partner in Respondent No.8 Company. Name of Respondent No.8 is M/s SMS Watergrace Enviroprotect Pvt. Ltd. This material is sufficient to indicate that there is close connection between M/s Watergrace Products and Respondent No.8 Company. Therefore, it is sufficient to infer that the Writ Petition was filed by M/s Watergrace Products at the instance of Respondent No.8. Since the Petition came to be dismissed and as the tender process was going on, without participating in the same, Respondent No.8, with a view to frustrate the tender process, has applied to the Board for grant of CTE and the Board has obliged it by granting CTE in favour of Respondent No.8.

It is clear from the record that, the Board issued CTE in favour of Respondent No.8, without conducting mandatory gap analysis, in absence of NOCs obtained by Respondent No.8 from the local authorities and by ignoring communication dated 3^rd June, 2024 issued by the Corporation and the ongoing tender process for establishment of CBWTF. The Board was well aware of the fact that the existing facility at Patoda, being operated by the Corporation, is well within the radius of 75 KM from the proposed facility of Respondent No.8.

It is evident from the record that, from time to time, DLMC and the Corporation requested the Board to cancel the CTE granted in favour of Respondent No.8. It is clear from the minutes of the meeting dated 30^th September, 2024 of DLMC that explanation was called from the Board for granting CTE in favour of Respondent No.8. The Corporation and the DLMC time and again requested the Board to cancel the CTE granted to Respondent No.8 and grant CTE and CTO to the Petitioner. The Board has deliberately ignored all the said correspondence.

Though the proposal of the Petitioner for grant of CTE was complete in all respects and all the required NOCs were annexed to the proposal submitted by the Petitioner, the Board has erroneously rejected the proposal of the Petitioner for want of Gap Analysis report. The said action of the Board is arbitrary and violative of Article 14 of the Constitution of India, as the Board has granted CTE to Respondent No.8 in absence of Gap Analysis Report.

It is apparent on the face of record that the Board has shown special favours to Respondent No.8 in granting CTE, by ignoring the repeated requests of the Corporation not to grant CTE as tender process was at the final stage.

The order passed by the Board granting CTE in favour of Respondent No.8 is in utter violation of the mandatory guidelines of Respondent No. 9 – CPCB. The Board has failed to adhere to the mandatory guidelines and directions issued by the CPCB to conduct Gap Analysis Report in spite of the communications issued by the CPCB. The Board has, therefore, committed serious procedural impropriety in ignoring the mandatory rules and the guidelines issued by the CPCB as well as existing facility, which was being operated by the Corporation.

The collusion on the part of the Board and Respondent No.8 is writ large on the face of record and only with a view to frustrate the tender process initiated by the Corporation under the supervision of the DLMC, though Respondent No.8 did not participate in the tender process, the CTE is granted in favour of Respondent No.8 by the Board, for extraneous considerations and by ignoring the relevant factors.

Letter dated 21.01.2025 appears to have been issued by the Board, with a hidden agenda to frustrate the tender process, initiated by the Corporation and with a hidden agenda of giving back door entry to Respondent No.8. It appears that there was unwarranted interference on the part of the Board in the tender process. Though the Petitioner was allotted tender, the Board directed the Corporation to instruct the Petitioner to stop collection of bio-medical waste, which was in consonance with the terms of the tender. The Board, therefore, has exceeded its jurisdiction / power by issuing the said letter. The interference of the Board in the tender process is unwarranted, uncalled for and without jurisdiction.

While granting CTE in favour of Respondent No.8, the Board has committed conscious violation of the mandatory rules and the guidelines issued by the CPCB and the same is issued for the serious prejudice to the Petitioner, as the direct object in issuing the said CTE appears to be to frustrate the tender process, which was at the final stage.

It appears that Respondent No.4 – SEIAA, before granting EC in favour of Respondent No.8 has failed to conduct an inquiry as to whether any biomedical waste treating facility is existing / operating at Chhatrapati Sambhaji Nagar. It has ignored that such a facility was operating at village Patoda. By relying on the incorrect statement made by Respondent No.8 that no such facility is in existence, the EC is granted in favour of Respondent No.8, which is unsustainable in law and facts of the present case. The said EC appears to be contrary to the mandatory procedure and gap analysis as per the mandatory guidelines issued by the CPCB.

In the peculiar facts of the present case, we are of the considered view that, legal malice is attributable to the Board in granting CTE in favour of Respondent No.8. Because, the said act appears to have been done with an indirect object of frustrating the tender process. The Board has issued CTE in favour of Respondent No.8 without a lawful excuse. The same is done wrongfully and willfully, without reasonable or probable cause. The said act is a deliberate act in disregard to the rights of the Petitioner. In “Punjab State Electricity Board Ltd., V/s Zora Singh and Others” (2005) 6 SCC 776, the Apex Court held that, “passing an order for an unauthorized purpose constitutes malice in law”. Facts of the present case clearly depict malice in law on the part of the Board and the SEIAA, in passing the impugned orders. Therefore, grant of CTE by the Board in favour of Respondent No.8, in our view, has to be held as invalid, as the same is done for unauthorized purpose and, therefore, it amounts to malice in law.

It is pertinent to note that, the Board, in its reply, has nowhere referred to the communications addressed to it by the Corporation or the minutes of the meetings of the DLMC, initially requesting it not to grant CTE in favour of anybody and subsequently to cancel the CTE granted in favour of Respondent No.8. There is no explanation on the part of the Board as to how in absence of Gap Analysis Report, CTE was granted in favour of Respondent No.8. The Board has also not explained as to why it has granted CTE in favour of Respondent No.8, in absence of Gap Analysis, but dined CTE to the Petitioner for absence of Gap Analysis Report. It is, thus, clear that the action of the Board, impugned in the present Petition, is per se arbitrary, unreasonable, irrational and unsustainable in law and facts of the present case and Respondent No.8 is issued the CTE in colourable exercise of powers.

Facts of the present case depict mala fide and biased approach on the part of the Board in granting CTE in favour of Respondent No.8, by ignoring all the relevant facts and the fact of CBWTF operating at Patoda and no other facility is permissible within 75 kms radius of the existing facility. The Board was well aware that in view of the ongoing tender process, the successful bidder would be required to apply for CTE for establishing CBWTF, by adopting modern technology and the Board would be required to grant CTE to the successful bidder.

The colourable exercise of power by the Board and the SEAC is apparent on the face of record. The Board has committed manifest error in awarding CTE to Respondent No.8 by exercising the power vested in it, in totally arbitrary, unreasonable and biased manner, by ignoring the relevant facts and the tender process initiated by the Corporation.

The impugned action of the Board is illogical and whimsical and the same is without any reasonable explanation. The same is in defiance of the Rules of procedure and the law and is based on prejudice or for showing special favours to Respondent No.8. Therefore, the same can be termed as arbitrary and capricious and hence the same is unsustainable.

In case of Association of Registration Plates v. Union of India and Others, [(2005) 1 SCC 679], the Apex Court has held that,

The above observations are applicable to the facts of the present case.

In “Kasturi Lal Laxmi Reddy V. State of J & K” (1980) 4 SCC 1, the Apex Court held :

In the present case, the action of the Board fails to satisfy the test of reasonableness and public interest. The Board has ignored the overwhelming public interest involved in the present matter, while granting CTE in favour of Respondent No.8 and refusing it to the Petitioner. The said action, therefore, can be termed as irrational and same is wanting in reasonableness and is not informed with the public interest.

In “Tata Cellular V/s Union of India” (1994) 6 SCC 651, the Apex Court has observed as follows :

Applying the aforesaid principle to the facts of the present case, we are of the considered view that the unfair, prejudicial, arbitrary and capricious as well as biased approach on the part of the Board as well as SEIAA is writ large on the face of record. The impugned actions, therefore, are unsustainable in law and the facts of the case.

The Board and Respondent No.8 have contended that alternate remedy of approaching National Green Tribunal is available to the Petitioner challenging the denial of CTE to it. We are not impressed by the said submission. Taking into consideration the overwhelming public interest involved in the matter, in our view, in the peculiar facts and circumstances of the present case, the said remedy cannot be said to be an efficacious remedy, therefore,we are inclined to exercise our extraordinary writ jurisdiction and entertain the Writ Petition.

For the aforestated reasons, we hold that the entire approach on the part of the Board in granting CTE in favour of Respondent No.8 and denying the same to the Petitioner is arbitrary, unreasonable and irrational, as the Board has ignored all the relevant factors, correspondence made by the corporation, resolutions passed by the DLMC and the binding rules and guidelines of CPCB. Hence, the impugned order granting CTE in favour of Respondent No.8 and refusing to grant CTE in favour of the Petitioner cannot be sustained in law and facts of the present case.

In the light of the above, the EC granted by SEIAA in favour of Respondent No.8 also cannot be sustained and the same is also liable to be quashed and set aside.

In the result, we pass the following order:

At this stage, learned Advocate for Respondent No.8 requests to stay this order.

For the reasons recorded in the order, the request is rejected.