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Judgment
The appeal and the application have been assigned to this Bench by the Hon'ble the Chief Justice by an order dated 18th December, 2019.
The appellants have challenged the order of the learned Single Judge dated 27th September, 2019.
In the writ petition the appellants have challenged, inter alia, the vires of the Notification dated 1st March, 2019 by which the amendment was effected to the existing Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016. By virtue of the said impugned Notification, the permission granted to Special Economic Zone units to import plastic scraps was withdrawn. The writ petitioners have alleged that there is a prohibition exteded to the import of virgin polyethylene (PE)/polypropylene (PP) into units of the Special Economic Zone. The writ petitioners further alleged that import of this particular substance has been allowed vide a Notification dated 6th July, 2016.
The writ petition was filed on 10th June, 2019 challenging the vires of the said Act.
It appears that on 9th August, 2019 after hearing the learned Counsel for the parties, the learned Single Judge, although was of the prima facie view, that the vires of the provisions of the Notification dated 1st March, 2019 could not be substantiated but had stayed a subsequent Notification dated 7th March, 2019 issued by the Government of India following the 1st March, 2019 Notification by which a period of six months was given to the petitioners and all persons similarly placed to ensure smooth compliance of those norms as indicated in the amendment Rules, 2019 published on 1st March, 2019. The learned Single Judge having arrived at a prima facie finding that there is no reason to interfere with the enforcement of the Notification of 1st March, 2019, in our view, could not be stayed the subsequent Notification dated 7th March, 2019 which is a off shoot of the Notification dated 1st March, 2019. When the said Office Memorandum is applicable to all persons similarly placed as that of the writ petitioners, the order dated 9th August, 2019 does not, however, give any reason as to why the other Memorandum dated 7th March, 2019 would not be made applicable to the writ petitioners.
In our view, faced with such a situation, a coordinate Bench deciding the matter is certainly competent to revisit the issues and decide if the interim order needs extension. The writ petition is still pending.
Irrespective of the fact that the Union of India has used any affidavit or not, the learned Single Judge has to arrive at a prima facie finding that the Notification dated 1st March, 2019 is ultra vires or that the appellants have been able to make out a strong prima facie case and only thereafter any office order issued in terms of the Notification dated March 1, 2019 could have been stayed. The presumption is always in favour of validity of the Rules as the statute. The onus is on the writ petitioners to demonstrate the illegalities in the legislation and of the Rules framed or if it is in violation of the Constitution of India or the Rule making process.
Under such circumstances, we feel that the grounds that were taken into consideration by the learned Single Judge in refusing to extend the interim order do not suffer from any infirmity. However, in the event, the appellants are unable to ensure smooth compliance of the norms, the appellants may approach Ministry of Environment, Forest and Climate Change (HSM Division) citing the reasons for not being able to comply with the said provisions as also the protection of the interim order passed earlier.
We request the learned Single Judge to dispose of the writ petition as expeditiously as possible. The time to file affidavit-in-opposition by the Union of India is peremptorily extended by two weeks from date, failing which we request the learned Single Judge to dispose of the writ petition on merits without affidavits.
It is needless to mention that the observation made by us in this order as well as all the earlier order passed by the learned Single Judge shall not influence the learned Single Judge in deciding the merits of the writ petition.
This order shall not prevent the writ petitioners to pray for interim reliefs if situation so arises.
The appellants shall immediately communicate this order to Ms. R.V. Kundalia, Advocate of 10 Old Post Office Street, B.B.D. Bagh, Kolkata in course of the day.
The appeal and the applications being CAN 10684 of 2019 and CAN 10685 of 2019 are accordingly disposed of.
Liberty to take the gist of the order for the purpose of communication to the learned Advocates of the respondent authorities.
Urgent photostat certified copy of the order, if applied for, be supplied to the parties, upon compliance of all requisite formalities.