JUDGMENT

Y.K. Sabharwal, J.

Considering the alarming situation created by dumping of hazardous waste, its generation and serious and irreversible damage as a result thereof to the environment, flora and fauna, and also having regard to the magnitude of the problem as a result of failure of the authorities to appreciate the gravity of situation and the need for prompt measures being taken to prevent serious and adverse consequences, a High Powered Committee (HPC) was constituted by this Court with Prof.M.G.K. Menon as its Chairman, in terms of order dated 30th October, 1997. The Committee comprised of experts from different disciplines and fields and was required to examine all matters in depth relating to hazardous waste.

2. On consideration of the detailed reports submitted by the HPC various directions have been issued by this Court from time to time. Presently, we are concerned with the presence of hazardous waste oil in 133 containers lying at Nhava Sheva Port as noticed by HPC. On the directions of this Court, the oil contained in the said 133 containers was sent for laboratory test to determine whether same is hazardous waste oil or not. It has been found to be hazardous waste.

3. On consideration of report of HPC, the result of laboratory test and entire material on record, this Court came to the prima facie conclusion that importers illegally imported waste oil in 133 containers in the garb of lubricating oil. In terms of the order dated 25th September, 2003, notices were directed to be issued to 15 importers who imported the said consignment as also to the Commissioner of Customs. The importers were directed to show cause why the consignment shall not be ordered to be re-exported or destroyed at their cost. Since, the Ministry of Environment and Forests had spent a sum of Rs.6.35 lakhs on the laboratory tests, the importers were also required to show cause why the said amount be not recovered from them and why all of them shall not be directed to make payment of compensation on polluter pays principle and other action taken against them.

4. The affidavits showing cause were filed by the importers. During the course of hearing, one of the contentions urged on behalf of the importers was that in respect of consignments in question, adjudicating proceedings were pending before Commissioner of Customs, Mumbai and this Court may, therefore, defer the decision on the aspect of re-export or destruction of the goods. In the order dated 11th March, 2004, it was observed that for the purpose of present proceedings, it is strictly not necessary to await the final decision of adjudication proceedings but a report from the Commissioner of Customs may assist the court in deciding the aspects indicated in the order dated 25th September, 2003. In this view, the Commissioner of Customs was directed to sent a report to this Court on the question whether the consignment in issue is waste oil within the meaning of the term waste oil as per Basel Convention or Hazardous Waste Rules, 1989 as amended in the year 2000 and/or as amended in the year 2003 also having regard to the relevant notifications issued on this aspect. The Commissioner of Customs was directed to give reasonable opportunity to the importers to put forth their viewpoint before him while examining the matter and was further directed to associate the Monitoring Committee that was constituted in terms of orders dated 14th October, 2003 reported in 2003 (9) SCALE 303. The question whether any further testing is required to be done as claimed by the importers was left to be decided by the Commissioner in consultation with the Monitoring Committee.

5. Detailed reports have been filed by Commissioner of Customs (Imports), Mumbai and the Monitoring Committee. We have perused the relevant material including those reports and have heard learned counsel for the petitioner, learned Additional Solicitor General appearing for the Ministry of Environment and Forests as also learned counsel app