M/S Data Enterprises vs Union Of India And Ors
2015 Latest Caselaw 8994 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 3rd December, 2015

+                                   W.P.(C) No.3464/2012
       M/S DATA ENTERPRISES                      ..... Petitioner
                    Through: Mr. Priyadarshi Manish, Mr. Karan
                             Chawla and Mrs. Anjali J. Manish,
                             Advs.
                    Versus
       UNION OF INDIA AND ORS                   ..... Respondents

Through: Mr. Vikas Mahajan, CGSC with Mr. S.S. Rai and Mr. Rohan Gupta, Advs.

                             for R-1&2

                                          AND

+                                      W.P.(C) No.3465/2012
       BEDY ASSOCIATION                                         ..... Petitioner
                   Through:                 Mr. Priyadarshi Manish, Mr. Karan
                                            Chawla and Mrs. Anjali J. Manish,
                                            Advs.
                                         Versus

    UNION OF INDIA AND ORS                    ..... Respondents
                  Through: Mr. Vikas Mahajan, CGSC with Mr.
                           S.S. Rai and Mr. Rohan Gupta, Advs.
                           for R-1&2.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. These two petitions though by different petitioners were filed together

by the same Advocate and have always been listed together for hearing and

are taken up together for disposal.

2. The petitioner in W.P.(C) No.3464/2012 has imported old and

used LCD monitors to India. The petitioner in W.P.(C) No.3465/2012 has

imported old and used LCD monitors and Desktop Computer without hard

disk drives and 70 pieces of old cooler fans. Both the petitioners, after the

consignments had reached India, realising that for import thereof permission

from the Ministry of Environment and Forests of the Government of India is

required, applied therefor and which permission has been denied to them

vide letter dated 10th April, 2012 to each of the petitioners. Impugning the

said letters dated 10th April, 2012, the present petitions have been filed.

3. The petitions were entertained and counter affidavit has been filed by

the respondent Ministry of Environment and Forests. The respondent in

accordance with the order dated 24th February, 2015 has also filed an

additional affidavit.

4. The counsels have been heard.

5. The petitioners, in the petitions have pleaded that at the time of

importing the aforesaid goods they were not aware of the permission for

such import being required under the Hazardous Wastes (Management,

Handling and Transboundary Movement) Rules, 2008 framed by the Central

Government in exercise of powers conferred by Sections 6,8 & 25 of the

Environment (Protection) Act, 1986 and hence applied therefor after the

goods had arrived in India. It is the contention of the petitioners that the

denial of permission to them is bad.

6. The respondents, in the letters aforesaid dated 10 th April, 2012 have

stated (i) that the Expert Committee constituted by the respondents had

recommended in general that import of computers for charity should not be

allowed; (ii) that the Customs Authorities and the Delhi Pollution Control

Committee had been requested to inspect the consignments and submit their

Report; (iii) that in the meanwhile during examination of another application

seeking permission to import used desktop computers for charity, in view of

the availability of low cost computers developed in the country including

those promoted by the Ministry of Human Resource Development, a

decision was taken that import of second hand computers for reuse should

not in general be allowed; and (iv) therefor the import of used

computers/computer peripherals which may lead to early generation of e-

waste was not considered desirable.

7. Though the counsel for the petitioners was generally challenging the

said decision but it was enquired from him whether not judicial review to

challenge the executive decision is circumscribed by the well recorded

parameters of either the decision being by an Authority not authorised to

take the decision or being contrary to the Rules, Laws and Regulations

applicable to the taking of the said decision or being so illogical and/or

unreasonable which on the face of it appears to be so and could not have

been reached by any reasonable person.

8. The counsel for the petitioners has argued that the respondent has

denied permission to the petitioners on the basis of a general decision having

been taken while considering the application of some other person that

import of used computers, computer peripherals would not be permitted. He

has contended that while the Rules aforesaid only restrict/regulate the

import, the respondent, vis-à-vis used computers and computers peripherals

has prohibited the import and which is not permissible in law. Reliance in

this regard is placed on Atul Commodities Private Limited Vs.

Commissioner of Customs, Cochin (2009) 5 SCC 46, particularly to paras

29 to 35 thereof where it has been observed that Director General, Foreign

Trade (DGFT) cannot change the categorisation of items from the category

of ―free‖ to the category of ―restricted‖ imports as the same is in the sole

domain of the Central Government under Section 5 of the Foreign Trade

(Development and Regulation) Act, 1992 (FTDR Act).

9. I have enquired from the counsel for the petitioners as to how the

aforesaid judgment would be applicable in the present context. Supreme

Court in Atul Commodities Private Limited supra was concerned with the

comparison of the powers under the FTDR Act of the Central Government

and the DGFT and on an examination of the provisions of the said Act

particularly Section 5 thereof concluded that thereunder while the Central

Government had been vested with the power to frame and amend Import

Export Policy, the DGFT had no such power and was only empowered to

remove ambiguities and issue clarifications and implement the said Policy.

10. The present is not a case of permission having been refused to the

petitioners under the provisions of FTDR Act. The permission was applied

for and has been refused by the Central Government in exercise of powers

vested in it under the Rules aforesaid.

11. It is not in dispute that in accordance with Rule 3(l)(iii) read with

Part-B of Schedule III to the Rules, the said goods fall in the definition of

Hazardous Waste and can only be imported in the country with the

permission of the Ministry of Environment and Forests. Rule

12 also constitutes the said Ministry as the nodal Ministry to deal with the

transboundary movement of the hazardous wastes.

12. The counsel for the petitioners has relied on Rule 13(2) which

provides that the import of hazardous wastes from any country shall be

permitted only for recycling or recovery or reuses. He contends that the

subject goods are for reuse and it is thus not as if the import thereof into the

country is prohibited. On enquiry as to how it can be determined that the

subject goods are for reuse and not for cannibalizing or as a waste, he

contends that whatever restrictions and conditions need to be imposed on the

petitioners in this regard to ensure that the end use of the goods is for reuse,

can be imposed.

13. Attention is next invited to Rule 14(2)(ii) to contend that since the

subject goods fall in Part B of Schedule-III, the same neither require Prior

Informed Consent of the country from where the goods are imported nor the

prior written permission of the Central Government before importing the

goods. Attention is further invited to entry with Basel No.1110 in Part B,

being the list of ―Hazardous Wastes Applicable For Import and Export Not

Requiring Prior Informed Consent‖ which is as under:

―-- Electrical and electronic assemblies (including printed circuit boards, electronic components and wires) destined for direct reuse and not for recycling or final disposal.‖

and it is contended that the subject goods are covered thereby.

14. I have however invited attention of the counsel for the petitioners to

the stars at the end of Part B of Schedule III and the footnote thereafter

which provides ―All other wastes listed in this Schedule 3 (Part B having no

‗Star/s (*...) can only be imported in to the country with the permission of

MoEF‖ and to the fact that the entry at Basel No.B1110 to which attention is

drawn is without stars and enquired whether not the same is indicative of the

import of the subject goods even if are to fall in the said entry requiring the

permission of MoEF.

15. The counsel for the petitioners states that it would still not be prior

permission.

16. The counsel for the petitioners has next invited attention to Rule 16

titled Procedure for Import of Hazardous Wastes and sub Rule (2) whereof is

as under:-

―16. Procedure for import of Hazardous Waste-

(2) On receipt of the application in complete, the Ministry of Environment and Forests shall examine the application considering the comments and observations, if any, received from the State Pollution Control Boards, and may grant the permission for import within a period of sixty days subject to the condition that the importer has-

(i) the environmentally sound recycling, recovery or reuse facilities;

(ii) adequate facilities and arrangement for treatment and disposal of wastes generated; and

(iii) a valid registration from the Central Pollution Control Board and a proof of being an actual user, if required under these rules.‖

It is contended that in the present case though the comments of the

Delhi Pollution Control Board (DPCB) are in favour of the petitioners but

have not been considered and the permission has been refused to the

petitioners merely on the basis of a so called policy decision to not allow

import of used computers and computers peripherals for the reason of

availability thereof at low cost in the country. It is contended that such a

decision would be bad and contrary to Rule 16(2).

17. Attention is invited to the Certificate dated 11th August, 2011 of

Rajesh Burman & Associates Consulting Chartered Engineers (in W.P.(C)

No.3464/2012) opining that the computer items imported are not e-scrap,

mostly in good condition and after repair and testing carried out in India on

these items, the working life of these items is expected to be at least five

years. Attention is also invited to the Minutes of the 24 Meeting of the

Technical Review Committee held in the MoEF on 16th November, 2011

containing the conditions for transboundary movement and to the condition

that used equipment would normally be considered waste if is not complete

- essential parts are missing and the equipment cannot perform its essential

key functions and it is destined for disposal operations. Attention is also

invited to the Office Memorandum dated 27th December, 2011 of the MoEF

(in W.P.(C) No.3464/2012) on the application of the petitioner seeking

permission for import and deferring decision on the said application upon

finding the report of inspection of the goods to be inconclusive. Attention is

yet further invited to the 22nd Meeting of the Expert Committee to scrutinize

applications seeking permission for export of hazardous waste held on 11th

January, 2012 wherein application of M/s HP India Software India Pvt. Ltd.,

Bangalore for import of 5000 nos. of E&EA comprising of used

Superdomes, Servers, Switches and Storage Products was recommended for

allowing on the statement that the same were required for self use.

18. The counsel for the respondents has invited attention to Section 24 of

the Environment (Protection) Act to contend that the provisions thereof

prevail over other laws and has thus contended that the reference by the

petitioner to the FTDR Act is misconceived. He has further contended that

the very fact that even according to the petitioners, the goods imported by

them are covered by Part B of Schedule III of the Hazardous Rules amounts

to an admission of the goods being hazardous waste. It is contended that

thus the contention of the petitioners that to constitute waste, the goods

should not be in working condition is erroneous. Attention is invited to Rule

17 which requires hazardous waste illegally imported to be re-exported

within a period of 90 days. It is argued that the same is indicative of prior

permission being required for import and which the petitioners admittedly

did not take. It is argued that the goods are liable to be returned for this

reason alone.

19. The counsel for the respondents has also contended that the entries in

Part B of Schedule III of the Rules supra are from the Basel Convention and

reliance is placed on Research Foundation for Science (18) Vs. Union of

India (2005) 13 SCC 186 to contend that the parameters fixed by the Basel

Convention are only guidelines and the individual countries can provide

different criteria in their national law to lay down the limits and when the

national law lays down stricter conditions, it has to apply and shelter cannot

be taken under the guidelines of Basel Convention.

20. The counsel for the petitioners in rejoinder has cited Shrishti Digital

Solution Vs. Additional Commissioner of Customs, Chennai 2013 (298)

ELT 197 where, finding that the machines were in working condition with

residual life, the import was allowed.

21. I have further enquired from the counsel for the petitioners whether

not the goods even if had a life of five years, as was opined by the engineer

engaged by the petitioner, the said life also is now nearly over and what

purpose the permission to import even if were to be granted to the petitioners

would serve.

22. The counsel for the petitioners states that the life of five years of the

goods would commence from the date they are put to use and would not

expire by non-use.

23. I have considered the rival contentions and proceed to adjudicate the

same under the following heads:

(A) Whether the petitioners were required to obtain prior

permission for import and if so what is the effect of the

petitioners having not obtained prior permission.

(B) Whether the Hazardous Waste Rules allow / permit import of

hazardous wastes for reuse and whether in the face of the said

statutory Rules, the Government could take a policy decision

not to allow import even if goods are for reuse.

(C) Whether upon the importer establishing that the goods are for

reuse, he is entitled to permission for import as a matter of

right.

24. As would be obvious from aforesaid, it is not in dispute that the goods

are covered by the Hazardous Wastes Rules. Rule 13(2) provides that the

import of hazardous wastes from any country would be permitted only for

the recycling or recovery or reuses. Import is defined by Rule 3(n) as

bringing into India from a place outside India. Rule 14(1) provides that the

import and export of hazardous wastes specified in Schedule III shall be

regulated in accordance with the conditions laid down therein. The footnote

to Part B of Schedule III also as aforesaid requires that the said hazardous

wastes can only be imported into the country with permission of MoEF.

25. A provision providing for import with the permission of the

government, specially in the context of hazardous goods, in my view has to

be understood as requiring permission to be obtained prior to brining the

goods which are of hazardous nature, into India. Once the goods have been

brought into India as the said goods indeed have been, they are or can be a

hazard. It is a different matter that inspite of having been brought into India

they may not be released to the importer for diverse reasons. The same,

having reached India, would still pose a hazard, even in the custody of the

authorities concerned. It is perhaps for this reason only that the Rule 17(2)

requires the goods illegally imported into India to be re-exported.

26. However Rule 14 creates some ambiguity. Sub-Rule (1) thereof

provides that import and export of hazardous goods specified in Schedule III

shall be regulated in accordance with the conditions laid down in the

Schedule. Schedule as aforesaid provides for import of the subject goods

with permission of MoEF. Rule 14(2)(i) provides that the import or export

of hazardous wastes specified in Part A of Schedule III shall require Prior

Informed Consent of the country from where goods are imported and shall

require the license from DFGT ―and the prior written permission of the

Central Government‖. Thereafter Rule 14(2)(ii) provides that the import of

hazardous wastes specified in Part B of Schedule III shall not require Prior

Informed Consent of the country from where the goods are imported. The

same suggests that goods other than those mentioned in Part A of Schedule

III do not require ―prior written permission of the Central Government‖ and

such permission can be obtained even after the goods have been imported

i.e. have reached India.

27. However Rule 14(2) has been made subject to the provision contained

in Rule 14(1) which as aforesaid makes the import regulated, in accordance

with the conditions laid down in the Schedule and which Schedule in the

footnote to Part B provides for import with the permission of MoEF and

which permission as aforesaid has necessarily to be ―prior‖.

28. The position is however placed beyond any pale of controversy by

Rule 16(1) which provides that a person intending to import hazardous

wastes specified in Schedule III shall apply in Form-VII and Form-VIII to

the Central Government of the proposed import and shall send a copy of the

application simultaneously to the concerned State Pollution Control Board

(SPCB) to enable them to send their comments and observations to the

MoEF. The use of the words ―intending to import‖ and ―proposed import‖

clearly show that the permission has to be applied for and obtained at the

time when the import is intended and proposed and not when the import has

been effected.

29. I therefore answer the question framed at ‗(A)' above by holding that

the permission for import under the Rules has to be ‗prior'. The petitioners

admittedly did not obtain the permission. Ignorance of law is no defence.

30. It thus follows that the goods have been illegally imported into India

and as per Rule 17(2) are required to be re-exported at the cost of the

petitioners.

31. Though the petitions are liable to be dismissed on this ground alone

but I nevertheless proceed to decide the other issues also for the sake of

completeness.

32. Section 8 of the Environment (Protection) Act prohibits handling of

any hazardous substance except in accordance with the procedure and after

complying with the safeguards prescribed. Though Rule 13(2) uses the

word ―shall‖ but only to indicate that import of hazardous wastes is

permitted only for recycling or recovery or reuse. The same can be by no

stretch be read as mandatorily permitting the import of hazardous wastes for

reuse. Moreover Rule 14 as aforesaid regulates the import by requiring prior

permission of MoEF. It is thus not as if whenever it is established that

hazardous waste is being imported for reuse, permission has to follow. If

that was so, there would have been no need to provide for the permission of

MoEF.

33. Rule 16 lays down the procedure for applying for and grant of

permission. I have already hereinabove taken note of Rule 16(1) which

provides the procedure for seeking permission. Rule 16(2) to which the

counsel for the petitioners has drawn attention lays down the procedure for

decision making thereon. It provides for the MoEF to examine the

application considering the comments and observations of the SPCB and

proceeds to provide that MoEF ―may grant permission for import‖ subject to

the importer satisfying the conditions prescribed therein. I have during the

hearing enquired from the counsel for the petitioners whether not the use of

the expression ―may grant the permission for import‖ would include within

it a power to prohibit.

34. No answer is forthcoming.

35. It is not as if under the Rules aforesaid permission has to be

necessarily granted. The condition, of the importer having reuse facility, is

to be imposed only if the permission is being granted and it is not as if

existence with the importer of reuse facilities entitles the importer as a

matter of right to import.

36. Emphasis laid by the counsel for the petitioners on the report of the

SPCB also is misconceived. The MoEF is not bound by the report and

comments of the SPCB and is only required to ‗consider' the same and the

language of Rule 16(2) permits the MoEF to reject the report of the SPCB or

take a decision contrary thereto, though of course for cogent reasons.

37. As would be obvious from the above, the position under the

Hazardous Wastes Rules is far different from that with which the Supreme

Court was concerned in Atul Commodities Pvt. Ltd. supra. While the FTDR

Act under consideration therein categories the decisions to be taken by the

Central Government and by the DGFT, under the Rules aforesaid, the

decision has been left to the MoEF and there is nothing to suggest that under

the Rules, MoEF is bound to grant permission for import whenever the

goods sought to be imported are intended for reuse.

38. I, therefore hold that the hazardous wastes Rules permit import of

hazardous wastes if intended for reuse but not as a matter of right and

empowers the MoEF to, even if hazardous wastes intended to be imported

are for reuse, decline permission.

39. The next question to be adjudicated is that when the Rules require the

MoEF to take decision qua each application for import on its own merits and

by following the procedure prescribed therefor, whether MoEF is entitled to

take a policy decision not to entertain applications for import of any

particular category of hazardous goods.

40. The answer to the aforesaid question in my view in the context of

hazardous wastes has to be in the affirmative. As the words ‗hazardous

wastes' suggests, the said goods are a danger to humanity and citizenry of

the country and none can claim a right to deal therewith. The Rules therefor,

though have prohibited import of certain categories of hazardous wastes, qua

others, import whereof may be necessary considering our commercial,

economic and political exigencies, do not grant any general permission for

import thereof and provide for import thereof with permission. The decision

in this respect has been left to the MoEF. The reason therefor is obvious.

Though ordinarily it is not in the interest of any country to allow waste, that

too hazardous and polluting, of another country to be dumped within its

boundaries, but owing to economic, social, commercial and political reasons

and to fulfill the demands of ever growing population, the same may be

necessary and need to be permitted. The Rules, qua the subject goods,

permit such import only for recycling or recovery or reuse. However the fact

that import for such limited purpose maybe permitted does not mean that the

goods are not hazardous. They remain hazardous. It is just that our country,

for certain compulsions, in the Rules did not deem it appropriate to put the

subject goods in the category of hazardous goods import whereof is totally

prohibited. If in these circumstances, the MoEF takes a policy decision that a

particular kind of hazardous waste need not be imported into India, I find no

reason or Rule prohibiting the government from taking such a decision.

Rather, our country should aim at reaching a stage when it can afford to

prohibit import of all and any hazardous waste. Supreme Court also in

Research Foundation for Science Technology Natural Resource Policy

(2005) 10 SCC 510 held that efforts are required to be made to minimize

dumping of hazardous wastes in our country. It was further held that in the

matter of hazardous wastes, the precautionary principle applies. Again, in

Research Foundation for Science, Technology and Natural Resource

Policy Vs. Union of India (2012) 7 SCC 764 it was emphasized that the

norms laid down in the Basel Convention or in any other subsequent

provisions that may be adopted by the Central Government in aid of a clean

and pollution free environment, are to be strictly complied with.

41. Mention may be made of an old judgment of this Court in Bharat

Zink (P) Ltd. Vs. Union of India (1997) 43 DRJ 389 in which also it was

held that the question whether a particular substance is hazardous or not is of

a technical nature and is a policy mater and is to be decided by the

Government. Supreme Court since then in N.D. Jayal Vs. Union of India

(2004) 9 SCC 362 also, in the context of apprehensions to the safety of Tehri

Dam, held that it is for the Government to decide how to do its job and the

Courts are ill-equipped to adjudicate on a policy decision so undertaken. It

was further held that the goal of the Environment Protection Act is to ensure

sustainable development and which is necessary to guarantee Right to Life

under Article 21 of the Constitution. It was yet further held that the object

and purpose of the Act--to provide for the protection and improvement of

the environment, could only be achieved by ensuring strict compliance of its

directions. The power under the Act was held not to be ‗power' simplicitor

but ‗power' coupled with ‗duty' as it is the duty of the State to ensure the

fulfillment of conditions or directions in the Act.

42. I therefore answer the questions framed at ‗(B)' and ‗(C)' above by

holding that the Hazardous Wastes Rules though permit import of certain

categories of hazardous waste only if intended for re-use, but not as a matter

of right and only with the permission of MoEF and that the Government is

entitled to take a policy decision not to permit the category of Hazardous

Wastes though permitted under the Rules to be imported for reuse, if the

demand thereof is met otherwise or if in the assessment of Government the

danger to the country from import thereof is far more than the need thereof

for reuse.

43. Otherwise, no ground has been urged with respect to the policy

decision to not allow import of such goods for reuse and which decision is to

apply across the board and no mala fides with respect thereto are attributed.

Supreme Court in G. Sundarrajan Vs. Union of India (2013) 6 SCC 620,

dealing with the issue of setting up of Nuclear Power Plant at Kudankulam

held that it is not for the Court to determine whether a particular policy or a

particular decision taken in fulfillment of a policy is fair and reasonable; the

Courts are concerned only with the manner in which the policy decisions

have been taken i.e. whether a decision can be said to be tainted with

procedural impropriety; unless the policy framed is absolute, capricious,

unreasonable and arbitrary and based on mere ipse dixit of the executive

authority or is invalid in constitutional or statutory mandate, Court's

interference is not called for. It was held that the issues of dangers from and

the harm that a Nuclear Power Plant may cause to human health,

environment, marine life etc. are to be addressed by the policy makers and

not to the Courts because destiny of a nation is shaped by the people's

representatives and not by a handful of Judges, unless there is an attempt to

tamper with the fundamental Constitutional principles or basic structure of

the Constitution. In the concurring judgment, parens patriae theory i.e. the

obligation of the State to protect the rights and privileges of its citizens and

theory of maxim salus populi suprema lex i.e. safety of the State is the

supreme law and in case of conflict, an individual must yield to the

collective interest was also invoked.

44. The petitions therefore fail and are dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

DECEMBER 03, 2015 ‗pp/gsr/bs'

(corrected and uploaded on 13th January, 2016)