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Judgment
Ravi Krishan Kapur, J
This matter had appeared in the daily cause list on September 23, 2019. On that day, Senior Advocate appearing on behalf of the petitioner had prayed for an extension of the interim order dated 9th August, 2019 passed by another Hon'ble Single Judge. On that day, counsel appearing on behalf of Union of India had submitted that there is a bar of alternative remedy and the instant writ petition is not maintainable. It in this background, that the matter was fixed today to decide on the question whether the interim order dated 9th August, 2019 ought to be extended.
Today at the hearing, Senior Advocate on behalf of the petitioner is not present.
However, his junior has argued the matter.
This writ petition is filed challenging inter‐alia the vires of a notification dated 1st March, 2019 whereby an amendment was effected to the existing Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016. By virtue of the impugned Notification, the permission granted to Special Economic Zone units to import plastic scraps was withdrawn. It is alleged in the petition that there is a prohibition extended to the import of virgin polyethylene (PE)/polypropylene (PP) into units of the Special Economic Zone. It is further alleged in the writ petition that import of this particular substance had been allowed vide a notification dated 6th July, 2016. In short, the 2019 Rules promulgated by virtue of the notification dated 1st March, 2019 are the subject matter of challenge in the present writ petition.
The writ petition was filed on 10th June, 2019 and was moved before the Learned Single Judge on 19th June, 2019. The Learned Judge passed the following order:‐
"Vires of provisions of a Notification being GSR 395 dated April 4, 2016 which introduced the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016 are under challenge in the present writ petition.
Union of India are represented.
In such circumstances, let affidavit in opposition be filed within four weeks from date, reply thereto, if any, be filed two weeks thereafter.
The writ petition will be treated as ready for hearing immediately on completion of the time stipulated for filing affidavits. Liberty to the parties to mention for early hearing.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities."
The Union of India failed to file its affidavit‐in‐opposition within the time period in terms of the order dated June 19, 2019. Thereafter, the matter appeared before another Learned Single Judge who passed the order dated 9th August, 2019 and granted an opportunity to the Union of India to file its affidavit within a period of three weeks from date. By the order dated 9th August, 2019 the Learned Judge also or directed that the portion of the Notification prohibiting import of plastics as far as the petitioner No.1 is concerned remain stayed. It is this order dated 9th August, 2019, of which, the petitioner seeks an extension.
It is submitted on behalf of the petitioner that the 2019 Rules adversely impacts the livelihood the thousands of workers and is contrary to the Basel Convention.There is no other ground in challenging the vires of the impugned Notification, urged by him, at this stage.
Counsel on behalf of the Union of India submits that, there is an alternative remedy and the issues raised in the instant writ petition should be more appropriately dealt with by the National Green Tribunal.
After hearing the parties, I am of the view that on 19th June, 2019 when the writ petition was moved for the first time there was specifically no interim prayer prayed for by the petitioners. On the contrary, the petitioners had only sought directions for filing affidavits. The only reason recorded in the order dated 9th August, 2019 is that "It would not be equitable to extend the time to file the affidavit‐in‐opposition without at the same time passing some order so that the petitioners who have come to this Court are not placed under the prohibition of the 2019 Rules".
I am of the view that having deliberately not taken the opportunity to press for an interim order on 19th June, 2019, the petitioner without any subsequent fact and in the absence of any fresh interlocutory application could not have had another bite at the cherry. Even if there was a subsequent fact entitling the petitioner to an injunction, it could only have been brought on record by way of a substantive application.
I am fully aware of the fact that the principles of res judicata do not apply at an interlocutory stage but on the ground of non‐filing of an affidavit, (and without any fresh interlocutory application), I am of the view that the petitioner was not entitled to any order of injunction at that stage.
The petitioner has not been able to justify any ground for extending the order dated 9th August, 2019. The Learned counsel could not satisfy me that there is any prima facie case made out at this stage warranting any kind of interim protection which can be afforded to the petitioner. In the circumstances, the interim order dated 9th August, 2019 is vacated.
Since the Union of India prays for affidavits, as a peremptory direction and as afinal opportunity, time is granted to the Union of India to file their affidavit. The time to file the affidavit‐in‐opposition is extended by six weeks.Reply if any two weeks thereafter.
Let this matter appear in the monthly list of December under the heading "Hearing". All points are left open including the question of maintainability of the writ petition.
Re : W.P. No. 16850 (W) of 2019
Counsel on behalf of the writ petitioner has filed a supplementary affidavit in Court. A copy of which has already been served on the Union of India.
Time to file affidavit in opposition to the supplementary affidavit as also to the main writ petition is extended by two weeks after the vacation. Reply, if any, two weeks thereafter.
Re : W.P. No. 16642 (W) of 2019
Counsel on behalf of the writ petitioner has filed a supplementary affidavit in Court. A copy of which has already been served on the Union of India.
Time to file affidavit in opposition to the supplementary affidavit as also to the main writ petition is extended by two weeks after the vacation. Reply, if any, two weeks thereafter.
List this matter in the monthly list of December, 2019.
Urgent Photostat copy of this order will be given to the parties, if applied for, upon compliance of all formalities.