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REPORTABLE

IN THE SUPREME  COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL  LEAVE  PETITION (CIVIL) NO.18394-18395/2012

MUMBAI WASTE MANAGEMENT LTD.          ..Petitioner

Versus

SECRETARY OF ENVIRONMENT GOVERNMENT OF INDIA & ORS.            ..Respondents

O R D E R

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

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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  

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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  

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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 Court found substance in  

the contention on behalf of  respondent No.5 that as the  

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collection and treatment, recycling, re-processing, storage  

and disposal   is under the authorization  of respondent  

No.2,  the  area  of  such  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  

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 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   shown  to  have  been  made  

upon a reasonable  criteria for the classification of districts  

which falls  within the area of allocation and similar other  

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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 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 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  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 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  

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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 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 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  

as to 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 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-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:-

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“5.  Grant  of  authorization  for  handling hazardous  wastes.

(2)   Every  occupier  generating  hazardous  wastes  and  having  a  facility  for  collection,  reception,  treatment,  transport storage and disposal of such wastes shall make  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  collection,  reception,  treatment,  transport,  storage  and  disposal of hazardous wastes shall make an application to  the State Pollution Control Board in Form 1 for the grant of  authorisation within a period of six months from  the date  of commencement of these rules.”     

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  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.   

11. However, we have noticed that the High Court  

has not entered into the question as to whether  sub-rule  

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(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 it is also competent to allocate  

the territory.  In that view of the matter, it would not be  

appropriate  to  express  any  view  on  this  aspect  of  the  

matter  as  in  that  event,  it  would  be  judging  the  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 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 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  

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dated January 29,  2011 and the appellate authority 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  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 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  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  respondent  No.5,  the  order  of  the  High  

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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, 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  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 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,  

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2008, March 9, 2009 nor  has 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  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 dismissed.

…………………………………J (Gyan Sudha Misra)

…………………………………J (J. Chelameswar)

New Delhi, May 2, 2013

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