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SUPREME COURT OF INDIA
Gyan Sudha Misra and Jasti Chelameswar, JJ.
Mumbai Waste Management Ltd. – Appellant
Vs.
Secretary of Environment, Government of India and Ors. – Respondents
Special Leave Petition (Civil) Nos. 18394-18395/2012
Decided On : 02.05.2013
Challenged the fixing of the territorial jurisdiction – Jurisdiction – Petitioner at admission stage itself - Since Petitioner-MWM was issued letter of award for years prior to Respondent Petitioner MWM felt aggrieved as it curtailed some part of their area of operation as part of those areas were given to Respondent since it offered more facilities for treatment of hazardous waste by government – Held, In view of order of allocation specifically determining territory which has been allotted to Petitioner and Respondent order of High Court as also appellate authority do not need to be interfered with as High Court appears to be correct and justified while holding that Petitioner would not encroach upon territory which falls beyond territory which had been allotted to it - However since competence and authority of Respondent and Respondent had not been gone into by High Court it is left open to be raised later in an appropriate case specifically for reason that High Court has not recorded any finding in regard to competence of Respondent and Respondent in regard to allotment of territory or area - As long as competence and authority of Respondent is not struck down as illegal and invalid by any court of competent jurisdiction it is not open for Petitioner to assail their authority for first time before this Court at stage of Special Leave to Appeal especially when this question had neither been raised by Petitioner before High Court nor dealt with by High Court out of which instant matter arises nor High Court has dealt with same by rightly observing that Petitioner has never challenged orders nor has raised this question before High Court as to whether Respondent had jurisdiction to determine territory of area of operation by operators dealing in waste management Petitioner had merely challenged the order of the appellate authority had clearly observed and rightly so that it had no jurisdiction to determine question as to whether Maharashtra Pollution Control Board and Respondent Department of Environment, Government of Maharashtra had jurisdiction to allocate territory for conducting the business of waste management - In that view of matter court do not think it appropriate to adjudicate and record a finding in regard to the competence and authority of Respondent and Respondent Nevertheless court find no reason to entertain these special leave petitions by which High Court had refused to entertain the writ petition assailing the order of appellate authority which in view of order of and was pleased to hold that Petitioner will have to confine its area of operation to area of those territories for which an order had been passed in its favor and area which was allotted to will not be encroached by Petitioner – Petition dismissed
ORDER :
1. Extensive arguments were advanced by the counsel for the Petitioner at the admission stage itself who has assailed the order passed by the High Court of Judicature at Bombay in Writ Petition No. 3953/2011 whereby the High Court was pleased to dismiss the writ petition directing the Petitioner not to encroach upon the area of operation allotted by Respondent No. 2, Secretary of Environment, Government of India to any other facility except its own.
2. The Petitioner-Mumbai Waste Management Ltd. (shortly referred to as 'MWM') in writ petition No. 3953/2011 out of which present SLP arises was issued the letter of award to collect, treat, recycle, reprocess, store and dispose of hazardous waste from the area allotted to the Petitioner. Similarly, the Respondent No. 5 SMS Infrastructure Ltd. was also issued the letter of consent on 27.10.2005 for treatment, storage and disposal facility of hazardous waste from the area allotted to Respondent No. 5. The areas were determined upon certain geographical criteria. The Petitioner-MWM has been allotted the Westernmost Belt of Maharashtra consisting of districts of Thane, Raigad, Ratnagiri and Sindudurg outside Bombay. Similarly, Respondent No. 5 - SMS had been given other districts to deal with waste management facilities. Since the Petitioner-MWM was issued the letter of award for the years prior to Respondent No. 5, the Petitioner MWM felt aggrieved as it curtailed some part of their area of operation as part of those areas were given to Respondent No. 5 - SMS since it offered more facilities for treatment of hazardous waste by the government.
3. The Petitioner-MWM, therefore, challenged the fixing of the territorial jurisdiction and the assignment of the areas of operation by the government-Respondent No. 2 and claim that it is entitled to collect the hazardous waste of establishment outside the area allotted to it.
4. The principal ground of challenge of the Petitioner-MWM is that under the rules of 2005 in force, the consent to operate was not materially changed under the new rules of 2008 under which the government merely sought to re-fix the territorial area of operation through the orders of Respondent No. 2. The Petitioner-MWM assailed the order of curtailment essentially on the ground that on 24.9.2008, the Central Government through Respondent No. 4 promulgated new rules being Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008 and under those new rules Respondent No. 2 was denuded of the power to fix/re-fix the territorial area of operation of the waste management facilities. The Petitioner contended that under 2008 rules Respondent No. 2 is only the monitoring authority to the facilities set up but not to allocate/re-allocate the territorial jurisdiction.
5. The High Court was pleased to hold that all that was required to be adjudicated was whether the action of Respondent No. 2 modifying the allocated area and re-fixing the jurisdiction of the two facilities between Petitioner-MWM and Respondent No. 5 - SMS is validly made under the 2008 rules or whether it is in excess of the jurisdiction of their authority. It has been categorically observed therein that the 2008 rules have not been challenged by the Petitioner.
6. The High Court on a perusal and assessment of the relevant Rule 5 of the 1989 Rules as also the 2008 Rules in regard to the Hazardous Waste Management Rules finally concluded that under 2008 Rules the person engaged in collection of hazardous waste has to obtain authorization from Respondent No. 2 in the State of Maharashtra. As such Respondent No. 2 authorized such facilities to collect waste under the old rules by an application made in a specific format in that behalf. The High Court was pleased to hold that not only the collection and treatment but re-cycling and re-processing, storage and disposal of the waste by such facilities would be only as per the authorization of Respondent No. 2 in the State of Maharashtra. The High Cou
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