MUMBAI WASTE MANAGEMENT LTD.versusSECRETARY OF ENVIRONMENT GOVERNMENT OF INDIA & ORS.

                    [2013] 6 S.C.R. 1153


          MUMBAI WASTE MANAGEMENT LTD.                               A
                               v.
  SECRETARY OF ENVIRONMENT GOVERNMENT OF
                    INDIA & ORS.
   (Special Leave Petition (Civil) No. 18394-9512012)
                         MAY 2, 2013
                                                                     B

 [GYAN · SUDHA MISRA AND J. CHELAMESWAR, JJ.]

   HAZARDOUS WASTE (MANAGEMENT AND
HANDLING) RULES, 1989:                                               c
    r. 5 (2) -- Allotment of area to petitioner to collect, treat,
recycle, reprocess, store and dispose of hazardous waste -
Subsequently, allotment to another concern also - Writ
petition by petitioner challenging the order of curtailment - 0
Held: The order is not patently unjust or illegal on the existing
facts of the case - In view of the order of allocation specifically
determining the territory which has been allotted to petitioner
and fifth respondent, order of High Court as also of appellate
authority do not need to be interfered with as High Court is E
correct and justified in holding that petitioner would not
encroach upon the territory which falls beyond the territory
which had been allotted to it -- As Jong as competence and
authority of Maharashtra Pollution Control Board and
Department of Environment, Government of Maharashtra is
not struck down as illegal and invalid by any court of F
competent jurisdiction, it is not open for petitioner to assail
their authority for the first time before Supreme Court at the
stage of special leave to appeal, specially when the question
had not been raised by petitioner before High Court --
Hazardous Waste (Management,                    Handling and G
Transboundary Movement) Rules, 2008 - Constitution of
India, 1950 - Art. 136.


                              1153                                   H
    1154       SUPREME COURT REPORTS              [2013] 6 S.C.R.


A       CIVIL APP ELLATE JURISDICTION : Petition For Sepcial
    Leave (Civil) No. 18394-18395 of 2012.

      From the Judgment & Order dated 16.03.2012 of the High
  Court of Bombay in CA No. 1310 of 2011, CWP No. 3953 of
B 2011.
       Shailesh K. Kapoor, Ajay Kumar, Rajan Singh,
    Rameshwar Prasad Goyal for the Petitioner.

       P.S. Patwalia, Jayant Kumar, Dr. Sadhna Mahashabde,
c   Dharitry Phookan, Vivek Vishnoi, Mukesh Verma, Pawan
    Kumar Shukla, Yash Pal Dhingra for the Respondents.

           The following order of the Court was delivered

                               ORDER
D
       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
E 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
F 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
G 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
H Thane, Raigad, Ratnagiri and Sindudurg outside Bombay.
     MUMBAI WASTE MANAGEMENT LTD. v.      1155
  SECRETARY OF ENVIRONMENT GOVT. OF INDIA

to deal with waste management facilities. Since the petitioner          A
- 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                 B
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          C
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            D
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                   E
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            F
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          G
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.                            H
    1156     SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A       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
B 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,
c 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 Court found substance in the
  contention on behalf of respondent No.5 that as the collection
  and treatment. recycling, re-processing, storage and disposal
  is under the authorization of respondent Np.2, the area of such
0
  operation would fall impliedly within the jurisdiction and authority
  of respondent No.2 to grant and authorize the applicant for
  collection of waste management. The learned Judges of the
  High Court also took judicial notice of the fact that the industries
  augmenting hazardous chemical waste and its effluents
E requiring proper management for its collection, treatment, re-
  cycling and disposal had increased manifestly in recent years
  in keeping with economic advancement and trade in such
  chemicals. Consequently, more facilities had to be established
  wherein more players would enter upon such trade. Hence the
F monopoly of facility was bound to be denuded. The High Court
  finally was pleased to hold that the area of allocation granted
  to MWM which are in the Westernmost 4 districts of
  Maharashtra does not suffer from the ills of unreasonableness
  of the criteria for allocation. Such allocation was prima facie
G shown to have been made upon a reasonable criteria for the
  classification of districts which falls within the area of allocation
  and similar other areas of allocation of other such facilities. The
  High Court also noted that the area of allocation had not been
  challenged by the petitioner nor it had sought to quash or set
H aside the orders of respondent No.2 dated December 11, 2008
     MUMBAI WASTE MANAGEMENT LTD. v.      1157
  SECRETARY OF ENVIRONMENT GOVT. OF INDIA

challenged by the petitioner nor it had sought to quash or set          A
aside the orders of respondent No.2 dated December 11, 2008
and March 9, 2009 or the respondent No.4 in appeal therefrom
dated January 29, 2011. Consequently, the direction to the
MWM not to encroach upon the area of other facilities provider
like respondent No.5 was required to be passed in favour of             B
respondent No.5 SMS which also had filed a separate writ
petition No.5846/2011.

      7. Counsel for the petitioner vehemently and with utmost
force inter-alia contended that the High Court was clearly in
error in issuing a direction to the petitioner to confine its area      C
of operation relating to waste management to the four districts,
as Maharashtra Pollution Control Board was authorized only to
monitor and supervise and could not tinker or interfere with the
area of allocation. However, the counsel did not even expressly
much less with any clarity said so but adopted a circuitous and         D
vague argument that the respondent had no authority to reduce
and expand or allot any area for the business of waste
management as it was only competent to authorize the parties
to treat the industrial waste and it had no authority or jurisdiction
to do anything other than treat the waste product. What is sought       E·
to be emphasized by the petitioner's counsel is that the
respondents had no authority to allocate the area for operating
the business of waste management.

       8. In spite of our persistent query, the counsel for the         F,
petitioner could not establish or explain it to this Court that if
the respondent No.2 - Maharashtra Pollution Control Board was
not authorized to allocate the area then who exactly would
allocate the area and in the process also missed that if that
were the position then the petitioner himself would not be left         G
with any authority to operate this business as he has been
allotted the area to operate by the same authority who allotted
it to the Respondent No.5.

     9. However, learned senior counsel for the respondent-
                                                                        H
    1158      SUPREME COURT REPORTS                  [2013] 6 S.C.R.


A   SMS, Mr. Patwalia relied upon rule 5 sub rule (2) of Hazardous
    Waste (Management & Handling) Rules, 1989 and has drawn
    the attention of this Court to the provision of sub-rule (2) of Rule
    5 which lays down as follows:-

         "5. Grant of authorization for handling hazardous
B
         wastes.

         (2) Every occupier generating hazardous wastes and
         having a facility for collection, reception, treatment,
         transport storage and disposal of such wastes shall make
c        an application in Form 1 to the State Pollution Control
         Board for the grant of authorisation for any of the above
         activities:

         Provided that the occupier not having a facility for the
D        collection, reception, treatment, transport, storage and
         disposal of hazardous wastes shall make an application
         to the State Pollution Control Board in Fonn 1 for the grant
         of authorisation within a period of six months from the date
         of commencement of these rules."

E      10. Learned counsel submitted that the above quoted sub-
  rule (2) of Rule (5) clearly establishes that authorization to
  operate or treat waste management would have to be
  interpreted so as to infer that the authorization included
  allocation of the area and if this were not so then there would
F be no difference in the contents of sub rule (1) and sub-rule (2)
  of Rule 5 and sub-rule (2) will merely be an imitation of sub-
  rule (1 ). In that view of the matter, he submitted, that the
  Maharashtra Pollution Control Board was clearly competent to
  determine the area of operation also.
G
       11. However, we have noticed that the High Court has not
  entered into the question as to whether sub-rule (2) of Rule 5
  is the provision from which it could be inferred that the
  Maharashtra Pollution Control Board is competent to authorize
  a party to treat and operate waste management and whether
    MUMBAI WASTE MANAGEMENT LTD. v.      1159
 SECRETARY OF ENVIRONMENT GOVT. OF INDIA

aspect of the matter as in that event, it would be judging the         A
issue which was neither raised nor dealt with by the High Court.
In view of this, one of the options available for this Court could
have been to remand the matter to the High Court to determine
this issue as the same had not been considered earlier. But
we refrain and desist ourselves from doing so as we notice that        B
the order is not patently unjust or illegal on the existing facts of
this case which could persuade this Court to enter into a
determination of the question which had neither been raised
nor dealt with by the High Court.

      12. There is yet another reason not to enter into this aspect C
as the High Court has clearly observed that the petitioner has
not challenged the orders of respondent No.2 dated December
11, 2008 and March 9, 2009 or order of respondent No.4. The
petitioner had merely challenged the order of the appellate
authority dated January 29, 2011 and the appellate authority D
had clearly observed and rightly so that it had no jurisdiction to
determine the question as to whether respondent No.2 -
Maharashtra Pollution Control Board and respondent No.4 -
Department of Environment, Government of Maharashtra had
jurisdiction to allocate territory for conducting the business of E
waste management. In that view of the matter, we do not think
it appropriate to adjudicate and record a finding in regard to
the competence and authority of respondent No.2 and
respondent No.4. Nevertheless, we find no reason to entertain
these special leave petitions by which the High Court had . F
refused to entertain the writ petition assailing the order of the
appellate authority which in view of the order of respondent No.
2 and respondent No.4 was pleased to hold that the petitioner
will have to confine its area of operation to the area of those
territories for which an order had been passed in its favour and G
the area which was allotted to respondent No.5 - SMS will not
be encroached by the petitioner.

     13. In view of the order of allocation specifically determining
the territory which has been allotted to the petitioner and
                                                                       H
    1160     SUPREME COURT REPORTS                [2013] 6 S.C.R.


A respondent No.5, the order of the High Court as also the
  appellate authority do not need to be interfered with as the High
  Court appears to be correct and justified while holding that the
  petitioner would not encroach upon the territory which falls
  beyond the territory which had been allotted to it. However,
B since the competence and authority of respondent No.2 and
  respondent No.4 had not been gone into by the High Court, it
  is left open to be raised later in an appropriate case specifically
  for the reason that the High Court has not recorded any finding
  in regard to the competence of the respondent No.2 and
c respondent No.4 in regard to allotment of territory or area . As
  long as the competence and authority of respondent No. 2 and
  respondent No. 4 is not struck down as illegal and invalid by
  any court of competent jurisdiction, it is not open for the
  petitioner to assail their authority for the first time before this
  Court at the stage of Special Leave to Appeal, specially when
0
  this question had neither been raised by the petitioner before
  the High Court nor dealt with by the High Court out of which the
  instant matter arises nor the High Court has dealt with the same
  by rightly observing that the petitioner has never challenged the
  orders dated December 11, 2008, March 9, 2009 nor has
E raised this question before the High Court as to whether
  respondent No.2 and respondent No.4 had jurisdiction to
  determine the territory of the area of operation by the operators
  dealing in waste management. Therefore, as already indicated
  hereinabove, the petitioner cannot be allowed to assail their
F authority in the instant special leave petitions in absence of any
  challenge to question before the High Court.

       14. In view of the aforesaid analysis, we find no substance
  in these special leave petitions and consequently they are
G dismissed.

    R.P.                                          SLPs dismissed.