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2012 Supreme(Bom) 580
High Court of Judicature at Bombay
MOHIT S. SHAH & ROSHAN DALVI, JJ.
Mumbai Waste Management Ltd. & Another
Versus
Secretary of Environment, Government of India Ministry of Environment & Forests & Others
WRIT PETITION NO.3953 OF 2011 WITH CIVIL APPLICATION NO.1310 OF 2011 AND WRIT PETITION NO.5846 OF 2011 WITH CIVIL APPLICATION NO. 2051 OF 2011
Decided on : 16-03-2012
For the Petitioners:Pradeep Sancheti, Sr. Advocate i/b. Vaishali Jain & P.V. Damodaran, Dr. Mrs. Sadhana Mahashabde, Advocates.
For the Respondent:R4, S.N. Patil, AGP, R2 & R3, Ms. Sharmila Deshmukh, R1, Ms. Naveena Kumai, UOI, R6, C.M. Lokesh, R1 & R2, S.N. Patil, AGP, R3 & R4, Mrs. Sharmila Deshmukh, R7, C.M. Lokesh, Advocates.
Headnote:HAZARDOUS WASTES RULES, 1989 - Rule 5(2) - Hazardous Works Rules, 2008 - Jurisdiction of Member Secretary of Board. The authority of Member Secretary of Maharashtra Pollution Control Board, to assign areas of operation, is not denuded under new Rules of 2008. The authority of Member Secretary of Pollution Control Board is not 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 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. r 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.
The work of collection, treatment, management and disposal of the chemical effluents would be better managed by more facilities in a give 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 die 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 act in excess of jurisdiction of respondent No. 2.
Roshan Dalvi, J.
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 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 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
