Bharat Zink (P) Ltd. vs Union Of India
1997 Latest Caselaw 697 Del

JUDGMENT

Arun Kumar, J.

(1) The petitioner is carrying on the business of manufacturing pure zinc metal using zinc waste as raw material. It processes zinc ash/zinc skimmings zinc dross/zinc scrap/brass ash and recovers two grades of refined zinc metals. According to the petitioner the production in its factory is dependent upon import of raw material. The import of raw material is governed by the Foreign Trade (Development & Regulation) Act, 1990. Section 5 of this Act empowers the Central Government to formulate and announce by notification in the Official Gazette the export and import policy from time to time. In pursuance of this power the Central Government notified the Export and Import Policy for the period 1992-97. Prior to 1st April, 1995 there was no specific entry pertaining to hazardous wastes in the Negative list of imports in the Export & Import Policy, 1992-97. Therefore, import of hazardous wastes as a category was not prohibited or restricted by the Policy. However, in the amended policy notified by the Central Government with effect from 1st April, 1995 the following entry was included at Sr. No. 8 in Schedule H of the restricted list of imports contained in Para 156: @5TB = Sr. No. Description of Nature of restriction Item @5TB = 8. Hazardous wastes Import permitted against a licence and only for the purposes of processing or re-use.

(2) Thus, import of hazardous wastes was not absolutely banned. The only restriction was that it was permitted against a licence and for purposes of processing or re-use. Procedures were formulated in order to ensure that the import of such goods was allowed only to actual users who had the necessary facilities for processing or re-using these items as per the guidelines of State/Central Pollution Control Board(s): @SUBPARA = "The Hazardous Wastes (Management and Handling) Rules, 1989 were notified by the Ministry of Environment and Forest under the Environment (Protection) Act, 1986. These rules provide for a control for the generation, collection, treatment, transport, import, storage disposal of wastes listed in the schedule annexed to these rules. The implementation of these rules are through the identified State agencies viz. State Pollution Control Boards and the State Government (Department of Environment). The applicability of these rules have been stated in Rule 2 and the definitions are provided in Rule 3. @SUBPARA = "Rule 11. -Import of hazardous wastes : (1) Import of hazardous wastes from any country to India shall not be permitted for dumping and disposal of such wastes. However, import of such wastes may be allowed for processing or re-use as raw material, after examining each case on merit by the State Pollution Control Board or by an officer authorised in this behalf."

(3) The petitioner applied for import licence to import zinc ash on 8th August, 1994. The application of the petitioner for grant of the import licence was placed before a high powered Special Licencing Committee consisting mainly of the Chairman, Central Pollution Control Board, the Joint Director, Ministry of Foreign Trade and the Director General of the said Committee after procuring reports about the functioning of the petitioner's plant granting the permission for import of the raw material in question. On the basis of the recommendation of the said Committee the Director General of Foreign Trade granted the import licence to the petitioner in June, 1995 which was valid for one year. Anticipating that the one year period would be expiring and question of renewal of licence and permission of the special high powered Committee for that purpose would become necessary, the petitioner started the process of seeking the permission as well as renewal of licence quite in advance.

(4) The grievance of the petitioner in the present writ petition is that the respondents have slept over the matter for over two years and they have not disposed of the petitioner's application for renewal of the import licence.

(5) The Central Government in this counter affidavit filed in reply to the writ petition has only relied on certain orders passed by this Court and by the Supreme Court in other cases to justify its inaction in not processing the petitioner's application for renewal of licence. Because of this stand of the Central Government it becomes necessary to refer to these orders. In C.W. No. 67/1996 (Harshwardhan Steels Pvt. Ltd. v. Union of India) by this Court vide order dated 10th April, 1996 directed the Central Government to ensure that no toxic waste is imported into India. The said interim order continues to be in operation till today.

(6) In another case C.W. No. 1331/1997 a Division Bench of this Court passed an interim order on 2nd April, 1997 restraining the import of zinc ash/zinc skimmings and lead ash/skimmings. This order, however, was not continued and vide an order dated 17th June, 1997, the application for interim relief was disposed of. This Court was of the view that "when The Government is dealing with a matter of such technical nature on the basis of the advise of a technical committee, it is not proper for this Court to suggest that a particular substance should or should not be imported for any such matter whatsoever. The decisions of such a matter should be left on experts and the Government.

(7) The Court referred to an order of the Supreme Court dated 5th May, 1997 in this connection and observed that "if any further clarification or modification is required in the matter any of the parties could move the Hon'ble Supreme Court for the purpose". The operative part of the Supreme Court order dated 5th May 1997 in Writ Petition (Civil) No. 657 of 1995, Research foundation for Science v. Union of India & Another is: @SUBPARA = "(2) with effect from today no authorisation permission would be given by any authority for the import which have already been banned by the Central Government or by any order made by any Court or any other authority. @SUBPARA = (3) with effect from today no import would be made or permitted by any authority or any person of any hazardous waste which is already banned under the Basel Convention or to be banned hereafter with effect from the date specified therein."

(8) The main stay of the stand of the Central Government is aforesaid Court orders. It is worth noting that the Central Government has not at all taken the stand that it has banned the import of zinc ash/skimmings. As already seen, so far as the Central Government is concerned, the only official statement is the entry at Sr. No. 8 regarding hazardous wastes in the restricted list quoted hereinbefore.

(9) The learned Counsel appearing for the petitioner submitted with reference to the Supreme Court order referred to above that the said order envisages either a ban imposed by the Central Government or by the Courts or by the Basel Convention. In the present case there is no decision of the Central Government banning the import of zinc ash/skimming. Further it is submitted that there is no Court order banning the import of the said item. The learned Counsel tried to distinguish the order passed by this Court in Harshwardhan case (supra) by saying that the said order is in relation to toxic wastes and zinc ash is not a toxic waste. To make good this submission the learned Counsel invited my attention to the reply of the Central Government contained in Paras 14 and 15 of its counter affidavit wherein it is stated that zinc wastes are not toxic but they are hazardous. It is submitted that this admission on the part of the Central Government leaves no scope for any controversy. And the order in Harshwardhan's case is not attracted qua import of zinc waste. At best as per the Central Government, zinc waste may be said to be hazardous but import of hazardous waste is not banned in view of the entry at Sr. No. 8 in the restricted list referred to above. So far as the other order of this Court referred to above is concerned, the same already stands vacated and therefore, it cannot be relied upon by the Central Government to justify its inaction/stand. This brings me to the third aspect contained in the Supreme Court order which is regarding the item being banned under the Basel Convention. According to the learned Counsel zinc ash or skimmings are not banned under the Basel Convention. This has not been disputed or denied by the respondents. Therefore, I need not enter into this controversy. In fact the Counsel for the petitioner relied upon the averments made in the writ petition to show that zinc ash is not banned under the Basel Convention.

(10) Under these circumstances it is submitted on behalf of the petitioner that presently there is no reason whatsoever for the Central Government to withhold the permission to renew the licence of the petitioner for import of zinc ash/skimmings. As a matter of fact the prayer in the writ petition is only for a direction to the Central Government to take a decision in this matter and communicate the same to the petitioner.

(11) To justify its claim for grant of the permission for renewal of licence, the petitioner has placed lot of material on record to show that the plant of the petitioner satisfies all the technical and other requirements as contains all the safe-guards regarding pollution control. Its plant has been inspected by the high powered official committees which have given reports in favour of the petitioner. Be that as it may, I do not consider it necessary for this Court at this stage to go into the question as to whether the plant of the petitioner satisfies all the relevant requirements. I am of the view that this aspect is required to be taken into consideration by the Central Government at the time of taking the decision regarding renewal of petitioner's licence. The nature of the controversy and the item which is sought to be imported and the manner of its use in the country are highly technical aspects. In fact the Government had appointed a technical committee called the `Mashelkar Committee', chaired by Dr. R.A. Mashelkar, Director General, Council of Scientific & Industrial Research, New Delhi. The said Committee had gone into the question of permitting the import of zinc ash/skimmings.

(12) The final decision as to whether import of zinc ash/skimmings should be permitted or not is a policy matter which has to be decided by the Central Government after taking all relevant aspects into consideration. The order of the Supreme Court referred to above in fact envisages a decision on the part of the Central Government. When it refers to banning orders of Central Government as well as ban by the Central Government in future. This shows that the decision in this respect has been left to the Central Government. This is what flows from the judgment of the Division Bench of this Court dated 17th June, 1997 passed in C.W. No. 1331/1997 while finally disposing of the application for interim stay. This Court felt that the question whether a particular substance is hazardous or not is of a technical nature and is to be decided by the persons having required knowledge and expertise. Admittedly the import of hazardous wastes from any country to India for the purpose of dumping and disposal has been banned and import of such wastes is allowed only for processing/re-use as raw material. These are matters of policy to be decided by the Government on the basis of relevant material and the advice of experts. In fact the Central Government is alive to the need to amend the nature of restriction prescribed for hazardous wastes to remove ambiguity with respect to the definition of hazardous wastes as appears from the counter affidavit filed on behalf of the Central Government.

(13) Mr. Vijay Panjwani, learned Counsel appearing for the Central Pollution Control Board, respondent No. 3, submitted that all hazardous wastes are bound to be toxic. To make this submission he relied on Chand's Dictionary of Environment where meaning of hazardous wastes is given as under: @SUBPARA = "Wastes that contains any substance harmful to life. These may be toxic (i.e. pesticides, compounds of arsenic, cy....flammable (e.g.hydrocarbons), corrosive (strong acids or alkalies) or oxidizing (e.g. mi.... or ch...) and some may be hazardous on more than one count."

(14) Keeping all aspect in view I am of the considered opinion that it is the Central Government which ought to first take a decision as to whether it is going to permit the import of zinc ash/skimmings for any purpose including processing or re-use. The Central Government cannot be permitted to take cover under the aforesaid orders of this Court or the Supreme Court and shy away from its primary duty to take the decision. To my mind none of the Court orders referred to above debar the Government from taking such a decision. Still if any difficulty is felt in taking a decision in the matter it can always seek clarification from the Court. The total silence or inaction on the part of the Central Government cannot be countenanced. The Central Government is hereby directed to take a decision on the application of the petitioner for permission for renewal of the import licence which was granted in its favour for import of zinc ash/skimmings and which has since expired. The decision of the Central Government in this behalf be communicated to the petitioner within three months from today.

(15) The writ petition is disposed of with costs. Counsel fee Rs. 5,000.00 .