The Circular was arbitrary, discriminatory, and null and void, violating Article 19(1)(g) of the Constitution of India and issued without any statutory unpinning.

JUDGMENT

M. S. Sonak, J. - Heard the learned Counsel for the parties.

2. Rule. The rule is made returnable forthwith at the request and with the consent of the learned counsel for the parties.

3. The Petitioners challenge the Circular dated 27th March 2019 issued by the Goa State Pollution Control Board (GSPCB) under the title "Guidelines for transportation and treatment of cat 3.1, cat 3.2, cat 3.3 and cat 3.4". The Petitioners claim to be affected by clause 5 of this impugned Circular which inter alia provides that the waste generator of hazardous waste of cat 3.1, cat 3.2, cat 3.3, cat 3.4 and cat 5.2 should be recycled through GSPCB authorized recyclers operating in the State of Goa.

4. The Petitioners have pleaded and it is not even denied that they are undertaking the activities of recycling hazardous waste of the aforesaid categories for the last several years, based upon authorizations granted to them under the Environment (Protection) Act, 1986 (EPA) and the Hazardous and other wastes ( Management & Transboundary Movement ) Rules, 2016 ( Hazardous Waste Rules). The Petitioners have pleaded that they have necessary authorizations for receiving and transportation of hazardous waste in the State of Goa and authorizations for recycling of such waste at their facility in the State of Maharashtra. The Petitioners have pleaded that clause 5 of the Circular, operates to prevent waste generators in the State of Goa from engaging services of Petitioners, simply because the Petitioners do not have a recycling facility in the State of Goa. The Petitioners have pleaded that at least in so far as category 5.2 hazardous waste is concerned, it is only M/s. Canacona Hydrocarbons i.e. Respondent No.4 herein which has the facility of recycling in the State of Goa. The Petitioners have therefore alleged that the impugned Circular has been issued at the behest of Respondent No.4 and to confer a virtual monopoly status upon Respondent No.4 when it comes to recycling of certain hazardous waste generated in the State of Goa. The Petitioners have alleged that there are malafides involved and in any case, the impugned Circular runs counter to the provisions of EPA and Hazardous Waste Rules. The Petitioners have alleged that the impugned Circular has been issued without any application of mind and the restriction imposed is ex facie, arbitrary, unreasonable, and discriminatory. The Petitioners have pleaded that the impugned Circular fetters the discretion of the authorities like GSPCB to examine nuances of individual cases and is therefore arbitrary and unreasonable. The Petitioners have pleaded that the impugned Circular imposes unreasonable restrictions on their right to carry on trade, occupation, and business and since, such unreasonable restrictions have been imposed by an executive order having no statutory unpinning whatsoever, the same violates Article 19(1)(g) of the Constitution of India.

5. Mr. Desai, learned counsel for the Petitioners reiterated the aforesaid contentions after he took us through the relevant material on record. Mr. Desai relied on the following decisions: U.P. State Road Transport Corporation and another vs. Mohd. Ismail and ors., (1991) 3 SCC 239 , State of Bihar & Ors. vs. Project Uchcha Vidya, Sikshak Sangh and ors., (2006) 2 SCC 545 , Diamond Jubilee High School & Anr. vs. State of Maharashtra & Ors., 5 AIRBomR 190 , Shri Rama Sugar Industries Ltd. vs. State of Andhra Pradesh and ors., (1974) 1 SCC 534 , Trish Gupta vs. Guru Gobind Singh University,2012 SCCOnlineDel 5543 , Regina North vs. North West Lancashire Health Authority, (2000) 1 WLR 977 , State of Gujarat and ors vs. Lalsingh Kishansingh, (1981) AIR SC 368 Gulf Goans Hotels Company Ltd. & Anr. vs. Union of India and Ors., (2014) 10 SCC 673 , A-G Ex Red. Tilley vs. Wandsworth LBC, (1981) 1 WLR 854 in support of his contentions.

6. Mr. Pavithran, learned counsel for the GSPCB defended the impugned Circular based on defenses set out in the affidavit filed by th