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2013 Supreme(P&H) 1610
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Justice Hemant Gupta
The Hon’ble Mr. Justice Fateh Deep Singh
CWP No.2032 of 2006 (O&M)
Pollution Control Committee Amritsar v. Municipal Corporation Amritsar & Ors.
{Decided on 23/07/2013}
For the Petitioner (CWP No.2032 of 2006):Mr. V.K. Kaushal, Advocate.
For the Respondent No. 1 (CWP No.2032 of 2006):Mr. R.D. Bawa, Advocate.
For the Respondent Nos. 2, 3 and 6 (CWP No.2032 of 2006):Mr. H.S. Brar, Additional Advocate General, Punjab.
For the Respondent Nos. 4 & 5 (CWP No.2032 of 2006):Mr. D.S. Patwalia, Advocate and Mr. Salil Sabhlok, Advocate.
For the Petitioner (CWP No.12188 of 2010):Mr. Vikram Chaudhary, Advocate,
For the Respondent No.1 (CWP No.12188 of 2010): Mr. H.S. Brar, Additional AG, Punjab.
For the Respondent No 2 (CWP No.12188 of 2010):Mr. Ashok Aggarwal, Senior Advocate with Mr. Mukul Aggarwal, Advocate.
For the Respondent No.3 (CWP No.12188 of 2010):Mr. D.S. Patwalia, Advocate and Mr. Salil Sabhlok, Advocate.
Headnote:(A) Constitution of India, 1950, Art.226--Writ jurisdiction--Held, powers of Writ Court are plenary in nature and in exercise of such power, Court can embark an inquiry into disputed questions of facts as well--But whether such powers should be exercised or not is one of the discretion. (Para 34)
(B) Constitution of India, 1950, Art.226 & 14--Judicial review--Award of contract--Held, power of judicial review in the matter of awarding contract conferred by Art.14 is wide, which enjoins public authority to act fairly, reasonably by excluding irrationality and arbitrariness--But power of judicial review in a concluded contract is limited and is not all pervasive as in the matter of awarding of contract--Writ Court in exercise of judicial review can intervene even in respect of concluded contracts if contract is statutory contract or there is a public law element in it. (Para 34)
(C) Contract Act,1872--Erection of Municipal Solid Waste Management Plant--Contract for--Held, no public law element involved in such contract. (Para 35)
(D) Constitution of India, 1950, Art.14--Contract to set up municipal solid waste management plant--Held, in larger public interest, Corporation directed to award contract to a person who is ready to comply with terms of the Rules and set up plant without any further delay--Municipal Solid Wastes (Management & Handling) Rules, 2000. (Para 39)
Mr. Hemant Gupta, J.: - This order shall dispose of CWP No. 2032 of 2006 (hereinafter referred to as ‘the first petition’) preferred by the Pollution Control Committee, Amritsar, for directing the respondents, including the Municipal Corporation, Amritsar to shift the dumping place of Municipal solid waste and dead animals to an authorized and approved place in accordance with the provisions of the Municipal Solid Wastes (Management & Handling) Rules, 2000 (for short ‘the Rules’) and for scientific disposal of the Municipal solid wastes and dead animals.
2. During the pendency of the aforesaid writ petition, on 5.5.2009, the Municipal Corporation has granted contract of processing and disposal of the Municipal solid waste to M/s AKC Developers Ltd., but such contract stands cancelled vide communication dated 28.5.2010. It is the said communication (Annexure P.32), which is subject matter of challenge in CWP No.12188 of 2010 (hereinafter referred to as ‘the second petition’) preferred by the successful bidder. The said writ petition is also being disposed of with the present writ petition.
3. A Division Bench of this Court passed an order on 7.5.2009 on the basis of the status report furnished by the Commissioner, Municipal Corporation, Amritsar. The order reads as:-
“Municipal Corporation, Amritsar has today filed a status report on the affidavit of Shri D.P.S. Kharbanda, Commissioner, Municipal Corporation, Amritsar. From a reading of the said affidavit, it appears that the substantial progress has been made towards setting up of a Solid Waste Treatment Plant in as much as setting up of the Plant has already been allotted to M/S A.K.C. Developers Limited Noida and the funds required for the project already arranged from JNNURM Cell of the Ministry of Urban Development and Poverty Alleviation, Delhi. Learned counsel appearing for the Municipal Corporation, Amritsar submits that according to his instructions, the Solid Waste Treatment Plant shall be set up within 9 to 12 months.
In the circumstances, therefore, we deem it fit to adjourn this petition by six months to be posted again on 21.12.2009 to enable the Corporation to submit a status report about the progress made by it.
We make it clear that setting up of the Solid Waste Treatment Plant shall be strictly in accordance with the provisions of the Water & Air (Prevention and Control of Pollution) Acts and all the permissions required for setting up such a plant shall be obtained form the competent authority by the Corporation before the work actually starts.”
4. It is thereafter, the letter of intent was issued to M/s AKC Developers Limited, the writ petitioner in the second writ petition. It is pointed out by the petitioner in the first petition that the solid waste of the city of Amritsar was being dumped at the Jhabal Road since the partition of the country which became a source of pollution to the locality. A processing unit of the dead animals also existed at that place, which also added to the pollution. The petitioner submitted a complaint to the Punjab State Human Rights Commission, but during the pendency of the complaint, the Rules were notified and the respondents assured the implementation of the said Rules. In pursuance of the direction of the Punjab State Human Rights Commission dated 24.9.2003, a status report was filed by the Municipal Corporation that the land fill at site at Bhagtanwala measuring 194 kanals, is now being used and an application for authorization under the Rules, has been made to the Punjab Pollution Control Board, which is under consideration. It is the stand of the petitioner that such authorization has not been granted by the Pollution Control Board under Rule 4(2) of the Rules to use the site at Gate Bhagtanwala as the land fill. The site is said to be adjoining the biggest grain market in the city, where large number of people visit everyday. A copy of the status report filed before the Punjab State Human Rights Commission, h
