JUDGMENT
S.J. Mukhopadhaya, Acting C.J.
1. This writ petition has been preferred by the petitioner commanding upon the respondents to show cause as to why they be not allowed to auction sell the non-ferrous metal wastes to any party, particularly when the 4th respondents has been allowed the sale order in violation of Rules 19 and 20 of the Hazardous Wastes (Management & Handling) Rules, 1989 (hereinafter to be referred as ‘H.W. Rules, 1989). Further prayer has been made for a direction on the Heavy Engineering Corporation Ltd., Ranchi (M/s H.E.C. Ltd.’) to produce before this Court the entire files, relating to tender process of Tender No. FFP/Disp./N.F.Chips TENDER/JULY-05/ dt. 26.07.2005 and to quash their decision or the order, awarding contract.
2. According to the petitioner, the aforesaid tender was published by Heavy Engineering Corporation Ltd. on 26th July, 2005 for the purposes of disposal/auction sale of its non-ferrous metal wastes, lying at its Foundry Forge Plant, Heavy Tools Plant and Heavy Machine Building Plant. The Schedule, appended to the tender documents, mentions the descriptions of materials, such as, Brass-chips, Mixed N.F. T/B, Mixed N.F. ingot, Mixed N.F. Skull, Dross & Spillage and Floor Sweeping, which are Schedule 4 items of H.W. Rules, 1989. Further case of the petitioner is that it is duly registered under the provisions of H.W. Rules, 1989 and is eligible to dispose and auction sell non-ferrous metal wastes. It purchased tender papers in time and submitted its bid within the stipulated date i.e. by 17th October, 2005 at 11.00 a.m. As per the tender notice, it was required to deposit earnest money at 5% of quota value and stipulation was made that tender without earnest money deposit was to be rejected. According to the petitioner, along with tender documents general terms and conditions of disposal sale tender were given, wherein, at Clause 4 it was mentioned that the tender should be accompanied by earnest money at the rate of 2.5% of the quoted value and shall be deposited in the form of D.D. drawn in favour of Heavy Engineering Corporation Ltd., Ranchi. The petitioner quoted its offer price for Item No. 1 (Brass chips), Item No. 2 (Mixed N.F. T/B), Item No. 5 (Dross & Spillage) and Item No. 6 (Floor Sweeping) at the rates of Rs. 88,786 per M.T., Rs. 81,678 per M.T., Rs. 32,988 per M.T. and Rs. 30,786 per M.T. respectively but due to ample confusion, it furnished D.D. of Rs. 3,00,000/- for all the four items, which was Rs. 19,000/- short than the quoted amount. On 18th October, 2005 the price bids of all the parties, including the petitioner, were opened but the petitioner came to know that though the 4th respondents, M/s Shiv Kumar Sunil Kumar, a partnership firm, Mirzapur (U.P.), is not registered as authorized Re-refiner or Recycler, yet the respondent M/s H.E.C. Ltd. has proceeded to award the entire tender in favour of 4th respondent, in violation of H.W. Rules, 1989.
3. According to M/s H.E.C. Ltd., though the petitioner submitted tender papers, upon scrutiny it was found that it did not fulfill the terms and conditions, because it did not deposit the requisite earnest money, which was approximately Rs. 20,000/- less than the amount, as was required to be deposited.
4. The petitioner has specifically pleaded that its unit is registered by Central Pollution Control Board, Delhi, and the Ministry of Environment & Forest, Government of India, New Delhi and, thus, entitled for re-refining and recycling. It is further alleged that the 4th respondent is not registered by Central Pollution Control Board, Delhi, in terms with H.W. Rules, 1989.
5. According to the 4th respondent, it is authorized under Rule 5 of the H.W. Rules,1989 by U.P. Pollution Control Board for collection, reception, treatment, storage and disposal of hazardous wastes.
6. As per H.W. Rules, 1989, any person, who intends to be the operator by a facility for the collection, reception, treatment, storage and disposal of hazardous wastes, shall make an application in appropriate form before the Member Secretary, State Pollution Control Board and upon receipt of such application, the Member Secretary, State Pollution Control Board, may grant authorization certificate to that person, From Annexure 1 to the counter affidavit, filed by 4th respondent, it appears that the Uttar Pradesh Pollution Control Board, Lucknow, has granted conditional authorization under Rule 5 of H.W. Rules. It was issued on 29th April, 2005 for the period 2005-07 for collection, reception, treatment, transport (inside factory), storage and disposal of category 6.2 and 8.3 up to 30 Kg./3 months.
7. The Central Government, in exercise of power conferred to it by Sections 6, 8 and 25 of the Environment (Protection) Act, 1986 framed H.W. Rules, 1989, as amended in the year, 2003, Rule 20 prescribes responsibility of waste generator, relevant portion of which reads as follows:
20. Responsibility of waste generator.-(1) No owner or occupier generating non-ferrous metal waste specified in Schedule 4 or generating used oil or waste oil of ten tons or more per annum shall sell or auction such non-ferrous metal wastes, used oil or waste oil except to a registered re-refiner or recycler, an the case may be, who undertakes to re-refine or recycle the waste within the period of validity of his certificate of registration.
xx xx xx
(3) The persons generating waste or auctioneers shall ensure that at the time of auction or sale, the period of validity of the certificate of registration of the registered re-refiner or recycler is sufficient to reprocess the quantity of wastes being sold or auctioned to him.
xx xx xx (5) The waste generators and auctioneers shall file annual returns of auction and sale in Form 13 latest by 31stday of January of every year to the respective State Pollution Control Board or Committee. 8. Procedure for registration and renewal of registration of recyclers and re-refiners have been prescribed under Rule 19, relevant part of which is quoted hereunder:
19. Procedure for registration and renewal of registration of recyclers and re-refiners.- (1) Every person desirous of recycling or re-refining non-ferrous metal wastes as specified in Schedule 4 or used oil or waste oil shall register himself with the Central Pollution Control Board:
Provided that no owner or occupier of an industrial unit having captive recycling of non-ferrous metals or recycling of waste oil or re-refining of used oil facility shall be required to registered under these rules:
Provided further that no person who has registered with the Ministry of Environment and Forests before the commencement of the Hazardous Wastes (Management and Handling) Amendment Rules, 2003, shall unless shall registration is cancelled or ceases to operate under Sub-rule (3) of Rule 21, be required to register under this Sub-rule as given in the certificate of registration.
(2) Every application for registration under this rule shall be made in Form 11 along with a copy each of the following documents to the Central Pollution Control Board for the grant of such registration or renewal.
(a) letter of consents granted under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981;
(b) authorization granted under Rule 5 of these rules;
(c) certificate of registration with District Industries Centre;
(d) proof of installed capacity of plant and machinery issued by either Slate Pollution Control Board or Committee or the District Industries Centre; and
(e) report from the State Pollution Control Board or Committee regarding proof or compliance of effluent and emission standards and treatment and disposal of hazardous wastes as stipulated by that Board or Committee.
(3) If the Central Pollution Control Board is satisfied that the recyclers or re-refiners process requisite facilities, technical capabilities, and equipment to recycle or re-refine the wastes and dispose of the hazardous wastes generated, it shall grant a certificate of registration to such recycler or re-refiner, as the case may he.
(4) The Central Pollution Control Hoard shall dispose of the application for registration within 120 days of receipt of such application with complete details.
(5) The certificate of registration granted under Sub-rule (3) shall be valid for a period of two years from the dale of its issue unless suspended or cancelled earlier.
XX XX XX
(13) Recyclers and Re-refiners registered with the Government of India in the Ministry of Environment and Forests or the Central Pollution Control Board shall maintain a record of wastes purchased, processed and sold and shall file an annual return in Form 12 to the respective State Pollution Control Board or Committee, as the case may be, latest by 3131st January of every year.
9. From the aforesaid Rule 20 it will be evident that no owner or occupier generating non-ferrous metal waste specified in Schedule 4 or generating used oil can sell or auction such non-ferrous metal wastes, used oil or waste oil, except to a registered re-refiner or recycler. Re-refiner and Recycler can be registered under Rule 19. The certificate granted by Uttar Pradesh Pollution Control Board, Lucknow, in favour of the 431th respondent is not a certificate under Rule 19, which can only be granted by Central Pollution Control Board. It is merely authorization under Rule 5 for collection, reception, treatment, transport (inside factory), storage and disposal. Though it may do so, but the respondent M/s H.E.C. Ltd. can not sell it to the 4th respondent, there being prohibition imposed under Rule 20 to sell non-ferrous metal wastes to any other person, except to a registered Re-refiner or Recycler.
10. In the aforesaid circumstance, while this Court is not inclined to give any finding as to whether non-ferrous metal wastes should be sold in favour of the petitioner or not, is also not inclined to issue any direction on the respondent M/s H.E.C. Ltd. to issue sate order in favour of the petitioner. It is for the competent authority to determine the same in accordance with law. However, taking into consideration the fact that the 4th respondent is not a registered Re-refiner or Recycler under Rule 19, the respondent M/s H.E.C. Ltd. is prohibited from selling non-ferrous metal wastes to the 4th respondent, M/s Shiv Kumar Sunil Kumar, a partnership firm, Mirzapur (U.P.), pursuant to Tender No. FFP/Disp./N.F. Chips TENDER/JULY-05/ dt. 26.07.2005. The sale order issued in favour of the 4th respondent is hereby set aside and the prohibition, as was imposed by this Court vide interim order dated 7th March, 2006, is confirmed.
11. The writ petition is, thus, allowed, with the aforesaid observations and directions. However, in the circumstances, there shall be no order as to costs.
