Full Judgment Text
2012:BHC-AS:6674-DB
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mnm
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3953 OF 2011
WITH
CIVIL APPLICATION NO.1310 OF 2011
Mumbai Waste Management Ltd.
(Ramky Group), A Limited Company,
Registered Under The Provisions of Indian
Companies Act, 1956, and having its local
office at: Plot No.P-32, MIDC, Taloja,
Taluka: Panvel, Dist: Raigad 410 208.
and having its Corporate office at:
st
6-3-1089/G/10 & 11, 1 floor, Gulmohar Avenue,
Raj Bhavan Road, Somajiguda, Hyderabad 500 082. ...Petitioner
Vs.
1. Secretary of Environment,
Government of India
Ministry of Environment & Forests
Paryavaran Bhavan, Cgo Complex
Lodhi Road, New Delhi 110 003.
2. Member Secretary
Maharashtra Pollution Control Board
having its office at : Kalpataru Point,
nd rd th
2 , 3 & 4 floor, Opp. Cineplanet,
Near Sion Circle, Sion (East), Mumbai 400 022.
3. The Chairman
Maharashtra Pollution Control Board,
having its office at: Kalpataru Point,
nd rd th
2 , 3 & 4 floor, Opp. Cineplanet,
Near Sion Circle, Sion (East), Mumbai 400 022.
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4. The Secretary,
Department of Environment,
Government of Maharashtra,
nd
Annex Building, 2 floor, Mantralaya,
Mumbai 400 032.
5. SMS Infrastructure Ltd.
(Ltd. Company Registered under
Company Act, 1956) having its registered
office at 267, Ganesh Phadnivs Bhavan,
Trikoni Park, Dharampeth,
District: Nagpur 400010. And having its
common Hazardous Waste Treatment and
Disposal Facility Nandigaon near Pune and Nagpur.
6. Chairman,
Central Pollution Control Board,
Parviesh Bhavan, East Arjun Nagar,
New Delhi 110032. ...Respondents
AND
WRIT PETITION NO.5846 OF 2011
WITH
CIVIL APPLICATION NO. 2051 OF 2011
SMS Infrastructure Ltd.
(Ltd. Company Registered under
Company Act, 1956) having its registered
office at 267, Ganesh Phadnivs Bhavan,
Trikoni Park, Dharampeth,
District: Nagpur 400010. And having its
common Hazardous Waste Treatment and
Disposal Facility Nandigaon near Pune
and Nagpur. ...Petitioner
Vs.
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1. The State of Maharashtra
Summons to be served to the Ld. Government
Pleader appearing for the parties) under the
Code of Civil Procedure.
2. Secretary of Environment,
Government of India
Ministry of Environment & Forests
having its office at Paryavaran Bhavan,
Cgo Complex Lodhi Road, New Delhi 110 003.
3. Member Secretary
Maharashtra Pollution Control Board
having its office at : Kalpataru Point,
nd rd th
2 , 3 & 4 floor, Opp. Cineplanet,
Near Sion Circle, Sion (East), Mumbai 400 022.
4. The Chairman of Maharashtra Control Board,
having its office at: Kalpataru Point,
nd rd th
2 , 3 & 4 floor, Opp. Cineplanet,
Near Sion Circle, Sion (East), Mumbai 400 022.
5. The Secretary,
Department of Environment,
Government of Maharashtra,
nd
Annex Building, 2 floor, Mantralaya,
Mumbai 400 032.
6. Chief Executive Officer
Maharashtra Industrial Development
Corporation having its office at Andheri.
7. Central Pollution Controal Board
Parivesh Bhavan, East Arjun Nagar
New Delhi, Delhi 110032. ...Respondents
Mr. Pradeep Sancheti, Sr. Advocate i/b. Vaishali Jain &
P.V. Damodaran for Petitioner in WP No.3953 of 2011
Mr. S.N. Patil, AGP for Respondent No.4 in WP No.3953 of 2011
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Ms. Sharmila Deshmukh for Respondent Nos.2 & 3 in WP No.3953 of 2011
Ms. Naveena Kumai for Respondent No.1 UOI in WP No.3953 of 2011
Mr. C.M. Lokesh for Respondent No.6 in WP No.3953 of 2011
Dr. Mrs. Sadhana Mahashabde for Petitioner in WP No.5846 of 2011
Mr. S.N. Patil, AGP for Respondent Nos. 1 & 2 for State in WP. No.5846 of
2011
Mrs. Sharmila Deshmukh for Respondent Nos.3 & 4 in WP. No.5846 of 2011
Mr. C.M. Lokesh for Respondent No.7 in WP. No.5846 of 2011
CORAM : MOHIT S. SHAH, C.J. AND
MRS. ROSHAN DALVI, J.
Judgment reserved on : 24 January 2012
Judgment pronounced on : 16 March 2012
JUDGMENT (Per Roshan Dalvi)
1. Rule. Returnable forthwith.
2. The petitioners in these two petitions are competitors in the
business of collection, treatment, storage and disposal of hazardous waste
of various establishments in Maharashtra. They have been incorporated
pursuant to the decision of the Government of Maharashtra to set up
Waste Management Facilities (WMF) in the State of Maharashtra.
3. The State of Maharashtra would act through the Member -
Secretary of the Maharashtra Pollution Control Board which is
respondent No.2 in Writ Petition No.3953 of 2011 and respondent No.3
in Writ Petition No.5846 of 2011 (Respondent No.2).
4. Tenders were floated and bids were invited. Both the petitioners
were given the award/consent to establish themselves as Hazardous
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Waste Treatment Storage and Disposal Facility (HWTSDF) in different
areas and catering to different establishments.
5. The petitioner in Petition No.3953 of 2011 (Mumbai Waste
Management Limited)(MWM) was issued the letter of award since 24
April 2001. The petitioner in Writ Petition No.5846 of 2011 (SMS
Infrastructure Ltd.)(SMS) was issued the letter of consent on 27 October
2005. They have been allotted different areas in which to operate to take
the hazardous waste of the establishments in their respective areas. The
areas are determined upon certain geographical criteria. MWM has been
essentially given the Westernmost belt of Maharashtra consisting of the
Districts of Thane, Raigad, Ratnagiri and Sindhudurg outside Bombay.
The SMS has been given the other Districts along with certain other
waste management facilities (WMF).
6. Since MWM was issued the letter of award 4 years prior to SMS
they would have had a larger area under their operations earlier. Part of
those areas have been given to SMS upon more facilities being
established for treatment of hazardous waste by the Government.
7. Whereas MWM has challenged the fixing of the territorial
jurisdiction and the assignment of the areas of operation by the
Government and claim that it is entitled to collect the hazardous waste of
establishments outside the areas allotted to it, SMS has sought the
directions of this Court in taking action against MWM for transgressing
its limits and by encroaching upon the area of operation allotted to it.
The main challenge of MWM is that under the rules in force in 2005 the
consent to operate was not materially changed under the new rules of
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2008 under which the Government sought to refix the territorial area of
operation through the orders of respondent No.2.
8. MWM has relied upon the letter of award dated 24 April 2001 and
the allotment of land on 99 years of lease granted to it in December 2001.
Consequent thereto it entered into leave and license agreement with
MIDC on 24 April 2002, through its holding Company, being one M/s
Ramky Finance and Investments Pvt. Ltd. (RFIPL) which will be
referred to as MWM itself. Consequently, MWM claimed the status of a
special purpose vehicle. It got installed the required infrastructure being
an incinerator, landfill and stabilization facilities and became functional
by October 2002. The consent for establishment was granted to it by
respondent No.2 on 2 January 2002. There was a further consent granted
to it to operate a common facility for treatment and disposal of composite
hazardous waste on 20 July 2002. A further consent to operate order was
issued by respondent No.2 in favour of the MWM on 14 November
2002. That came to be renewed on 8 December 2003 and thereafter on 8
April 2005. Until then SMS was not its competitor.
9. MWM has claimed that these orders were passed under the
Hazardous Waste (Management and Handling) Rules 1989 (1989 Rules)
which had fixed the territorial jurisdiction and operational area and
assigned the area of operation to each Common Hazardous Waste
Treatment, Storage and Disposal Facility. Sub Rule 2 of Rule 5 of the
1989 Rules came to be amended on 20 October 2005. Respondent No.2
reassigned the jurisdiction and operational areas of all the Waste
Management Facilities on 14 May 2008. MWM has not challenged the
amendment of 2005 and has accepted the reassignment of the operational
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areas made thereunder until 14 May 2008.
10. MWM claims that on 24 September 2008 the Central Government
through respondent No.4 promulgated new rules being Haradous Waste
(Management, Handling and Transboundary Movement) Rules, 2008
(2008 Rules). It claims that under those new rules respondent No.2 was
denuded of the power to fix/refix the territorial area of operation of the
waste management facilities. MWM claims that under 2008 Rules
respondent No.2 is only the monitoring authority to set up the facilities,
but not to allocate/reallocate the territorial jurisdiction.
11. On 11 December 2008 respondent No.2 refixed the jurisdiction and
working areas of the various Waste Management Facilities. One M/s.
Reliable Enterprises was authorised to collect hazardous waste from
various establishments mentioned in the Schedules 1 and 2 of the order
of respondent No.2 dated 25 January 2009 and its further letter dated 27
January 2009. Respondent No.2 by its letter dated 9 March 2009 called
upon MWM to comply with its order dated 11 December 2008 refixing
the area of operation of MWM. MWM challenged that order in appeal
provided under the 2008 Rules. Since no order was passed, a Writ
Petition in that behalf came to be filed being Writ Petition No.625 of
2010 in which respondent No.4 as the appellate authority was directed to
hear and decide the appeal within a specified time. The appeal came to
be rejected which is challenged in Writ Petition No.3953 of 2011.
12. Respondent No.2 issued a letter of consent to establish the Waste
Management Facility of SMS on 27 October 2005. SMS was allotted a
specified area to operate. The area came to be modified under a
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modified area allocation order on 11 December 2008. SMS claims its
rights under the order/letter of consent/allotment. It claims that MWM
has transgressed therein and has challenged the transgression by
encroachment within its territory.
13. Both the parties are competitors. Both have alleged certain facts
denied by the other with regard to the management of their plants with
their respective clients who are the establishments amenating hazardous
waste which is sought to be treated by them. We cannot go into the
disputed questions of facts.
14. All that is required to be adjudicated in this petition is whether the
action of respondent No.2 of the order modifying the allocated areas and
refixing the jurisdction of the two facilities being the two petitioners in
the above petition is validly made under the 2008 Rules or whether it is
in access of jurisdiction and their authority.
15. The 2008 Rules have not been challenged. They are only sought to
be interpreted. MWM has set out the relevant rule 5 of the 1989 Rules as
also the 2008 Rules in its petition. The Rules run thus:
Sec . 1989 Rules 2008 Rules
5(1) Hazardous waste shall be
Every person who is engaged in
generation, processing, treatment,
package, storage, transportation,
use collection, destruction,
conversion, offering for sale
transfer or the like of the
hazardous waste shall require
obtaining an authorization from
the State Pollution Control Board.
collected, treated, stored and
disposed off only in such
facilities as may be authorized
for this purpose.
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5(2) Every occupier handling, or
The hazardous waste shall be
collected, treated, recycled, re-
processed, stored or disposed off
only in such facilities as may be
authorized by the State Pollution
Control Board for the purpose.
recycler recycling, hazardous
waste shall make an application
in Form 1 to the Member
Secretary, State Pollution Control
Board or Committee, as the case
may be or any Officer designated
by the State Pollution Board or
Committee for the grant of
authorization for any of the said
activities.
Provided that an occupier or a
recycler not having a hazardous
waste treatment and disposal
facility as his own and is
operating in an area under the
jurisdiction assigned by the State
Pllution Control Board or
Committee, as the case may be,
for a common Treatment, Storage
and Disposal facility ........
16. We may mention that much would fall upon the authority of
respondent No.2 in granting the authorisation to the facilities. It would
be appropriate to understand the meaning of the concept of authority and
authorisation. The terms ‘authority’ and ‘authorisation’ are defined in
Concise Oxfor English Dictionary Indian Edition at page 88 thus:
“authority (pl. authorities ) 1. the power or right to give orders
and enforce obedience. 2 . a person or organization exerting
control in a political or administrative sphere. ”
“authorize or authorise give official permission for or
approval to – DERIVATIVES authorization”
Similarly the term ‘authorize’ is defined in Black’s Law Dictionary
Eight Edition at page 143 thus:
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“authorize , vb. 1 . To give legal authority; to empower <he
authorized the employee to act for him>. 2 . To formally
approve; to sanction <the city authorized the construction
project> - authorization”
rd
Similarly Advanced Law Lexicon by P. Ramanatha Aiyar 3
Edition 2007 reprint at page 411 defines ‘authorise’ thus:
“Authorise . To empower; to give right or authority to act; to
clothe with authority, warrant or legal power. [S.67(d), T.P Act
(4 of 1882] ”
It further sets out the meaning of authorise as:
“ ‘TO AUTHORISE’ means “to give formal approval to, to
sanction, approve, countenance. ”
The meaning of authorized as:
“Authorized” means “permitted” or “directed ”
Consequently, the term authority at page 414 is shown to be
“ Authority (In administrative law) is a body having jurisdiction
in certain matters of a public nature ”
Consequently at page 411 the authorisation is shown to be the
action authorising by the very example cited under Rule 2(c) of the
Hazardous Waste (Management and Handling) Rules 1989 requiring the
permission in the requisite form 2. Consequently, authorisation is shown
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to be the action of authorising by way of the permission granted by the
prescribed authority for the generation, collection, reception, storage,
transportation, treatment, disposal and/or any other form of handling of
bio-medical waste in accordance with these rules and any guidelines
issued by the Central Government [Rule 3(3) of the Batteries
(Management and Handling) Rules 2001] .
17. It is contended by Mr. Sancheti, learned Counsel on behalf of
MWM that the rules are hugely different and the new rules of 2008 has
denuded the power of respondent No.2. It is sought to be explained that
since the proviso of the Sub Rule 2 of the Rule 5 of 1989 Rules relating
to the assignment of the area of operation of the facility is not expressly
mentioned in Sub Rule 2 of Rule 5 of the 2008 Rules, the power must be
taken to have been impliedly taken away. It is contended that in the 2008
Rules respondent No.2 is not vested with any power to assign or fix an
area of operation of the waste management facilities.
18. Consequentially the argument is that 2008 Rules grant the power
upon respondent No.2 only to monitor the setting up of the facilities, but
not to allocate the areas of operation. It is argued that that is essential not
to stifle competition or create monopoly and allow the market forces to
operate. It is also contended that by allocating the areas the MWM’s
facility has remained unutilised though it can be availed of by various
establishments nearer to MWM than by SMS in terms of distance.
19. We do not find authority of respondent No.2 denuded under the
new rules. Under 2008 rules the person engaged in the collection of
hazardous waste has to obtain authorisation from respondent No.2 in the
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State of Maharashtra as much as respondent No.2 would authorise such
facility to collect waste under the old rules by an application made in a
specified format in that behalf. Not only the collection and treatment,
but recycling reprocessing, storage and disposal of the waste by such
facilities would be only as per the authorisation of respondent No.2 in the
State of Maharashtra. Only the proviso with relation to the assignment of
the area of operation is not expressly incorporated in the new rules.
However, since the very collection as also the treatment, recycling,
reprocessing, storage and disposal is under the authorisation of
respondent No.2, the area of such operation would fall impliedly within
the jurisdiction and authority of respondent No.2 to grant and authorise.
20. MWM has accordingly challenged the reassignment of the areas of
operation of the facilities excluding that of MWM.
21. It may be mentioned that the facility may, at a given time, be a
monopolist of the trade in a given area. Exigencies of the business and
the extent of waste disposal and treatment would require the monopoly to
be tampered and diluted. This would be the incidence of any trade or
business upon the demand for such trade or business increasing in a
given economic sector. It is common knowledge, and judicial notice is
required to be taken of the fact, that industries amenating hazardous
chemical wastes and effluents and requiring proper management for its
collection, treatment, recycling and disposal have increased manifold in
recent years in keeping with economic advancement and trade in such
chemicals. The facilities for collection, treatment, disposal etc., of the
waste are, therefore, more demanded by such economic situation.
Consequently, more facilities would be established and would enter upon
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such trade. The work of collection, treatment, management and disposal
of the chemical effluents would be better managed by more facilities in a
given area as required by the economic situation. The monopoly of a
facility may, therefore, be denuded. It may give way to a duopoly and
later a perfectly competitive market. Of course, market forces
determining the business of these facilities would be expected to play a
role as in all other trades and businesses. However, it is the duty of the
Central Government to see that the relevant departments of the State
Government monitor the operations of the effluent treatment and waste
disposal facilities. It is in that behalf that the monitoring and supervisory
role of respondent No.2 would be required. Consequently, the facilities
would require obtaining the authorisation from respondent No.2 as such
monitoring authority in the State of Maharashtra. Respondent No.2
would monitor the activities from the collection to the disposal of the
effluent waste of hazardous chemicals. In the course of such monitoring
the area of operation also may be fixed. Consequently, the refixing of the
areas under 2008 Rules by the order dated 11 December 2008 does not
come up for challenge on the ground of it being a case of an act in excess
of jurisdiction of respondent No.2.
22. Of course upon such areas being fixed for the respective facilities,
if the establishments who are the clients of the facilities have any
particular objection or grievance against the facilities they may be able to
challenge the allotment of those facilities to them upon making out a case
before respondent No.2 and applying to respondent No.2 of being given
the service of another facility. It is not for the facilities themselves to
challenge the area of operation since they have to work specifically under
the authorisation granted by respondent No.2 as the competent authority
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monitoring their activities from collection to disposal of the hazardous
waste.
23. It is also argued that distance from the establishments to the
facility is a relevant factor which is not considered whilst allocating the
area of operation. Certain illustrations have been provided to show the
distance between facilities and the establishments making affluent wastes
which may impact transporting costs and risks in transporting. Whereas
under the policy of respondent No.2 the facility is required to be within a
distance of 100 Kms from the establishment creating hazardous waste,
some establishments at more than that distance have been allotted to
SMS and others.
24. The distance between the two facilities may be one of the criteria
for determining the area of allocation. However, the area can also be
determined upon other reasonable criteria being the regionwise allocation
of various facilities as is sought to be done. The area of allocation
granted to MWM which are in the Westernmost 4 Districts of
Maharashtra, therefore, does not suffer from the ills of unreasonableness
of the criteria for allocation. Such an allocation is prima facie shown to
be made upon a reasonable criteria for the classification of Districts
which fall within the area of allocation of MWM and similarly other
areas of allocation of other such facilities. MWM has not shown any
unreasonable classification such as would grant the area of allocation of
establishments beyond its reach. The area allocation could have been
challenged had that been the case. That having not been done we do not
see how we can exercise our writ jurisdiction to quash or set aside the
orders of respondent No.2 dated 11 December 2008 and 9 March 2009 or
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order of respondent No.4 in appeal therefrom dated 29 January 2011.
Hence the consequent direction of MWM not to encroach upon the area
allotted to other facilities is in fact required to be passed as prayed for by
SMS.
O R D E R
1. Writ Petition No.3953 of 2011 is dismissed. Rule discharged.
2. The petitioner in Writ Petition No.3953 of 2011 shall not
encroach upon the area of operation allotted by respondent No.
2 to any other facility except its own.
3. Rule is granted in Writ Petition No.5846 of 2011 to the above
extent.
4. The above CAs are disposed of accordingly.
CHIEF JUSTICE
ROSHAN DALVI, J.
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