IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 7TH JULY 2010 / 16TH ASHADHA 1932 WP(C).No. 12894 of 2009(F) ----------------------------------------- PETITIONER(S): ------------------------ K.K.HUSSAIN, MANAGING PARTNER, M/S.SULTHAN & COMPANY, DOOR NO.XIII/88, CHANDRAPURAM P.O., WALAYAR, PALAKKAD-678 624. BY ADVS. SRI.M.V.BOSE, SRI.VINOD MADHAVAN, SMT.NISHA BOSE. RESPONDENT(S): ---------------------------- 1. THE SECRETARY, KERALA STATE POLLUTION CONTROL BOARD, THIRUVANANTHAPURAM. 2. THE CHAIRMAN & MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. *ADDL.R3 & R4 IMPLEADED: R3. M/S. SAMA RUBBERS, PONKUNNAM, KOTTAYAM. R4. M/S. CEE JEE LUBRICANTS, EDAYAR, ALUVA. (*ADDL.R3 & R4 ARE IMPLEADED AS PER ORDER DTD. 24/05/10) R1 BY ADV. SRI. M.K.CHANDRAMOHAN DAS, SC, KSPCB BY ADV. SMT.P.K.RADHIKA R2 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR,SC, KSRTC ADDL.R3 BY ADV.SRI.LIJI.J.VADAKEDOM ADDL.R4 BY ADV. SRI.V.KRISHNA MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.12894/2009 F APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF TENDER NOTICE DTD. 8/04/2009 PUBLISHED BY KSRTC. P2: COPY OF NOTICE FOR PUBLIC AUCTION SALE ON 24/03/2009. P3: TRUE EXTRACT OF THE AUCTION DETAILS OF SALE TO BE TAKEN PLACE ON 5/05/2009. P4: COPY OF CONSENT TO OPERATE ISSUED TO THE PETITIONER. P5: COPY OF LETTER OF THE PETITIONER DTD. 14/04/2009 TO THE 1ST RESPONDENT. P6: TRUE EXTRACT FROM THE CIRCULAR ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. P7: COPY OF LETTER, DTD. 03/07/2010 ISSUED BY THE POLLUTION CONTROL BOARD. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE COMMUNICATION RECEIVED FROM THE 1ST RESPONDENT DTD. 21/05/09. R3(A): COPY OF THE COMMUNICATION ISSUED BY THE MANAGING DIRECTOR OF KSRTC DTD. 23/04/2009 FOR RELEASING THE EMD. R4(A): COPY OF THE CONSENT TO OPERATE ISSUED BY THE FIRST RESPONDENT. R4(B): COPY OF THE REGISTRATION CERTIFICATE FROM THE CENTRAL POLLUTION CONTROL BOARD. /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 12894 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of July, 2010 J U D G M E N T The 2nd respondent-Kerala State Road Transport Corporation floated Ext.P1 tender notice inviting offers for purchase of 'Empty Engine Oil Barrels and Grease Barrels'. Petitioner has filed this writ petition aggrieved by the fact that Ext.P1 does not contain any specific clause insisting on the tenderers obtaining consent from the Central or State Pollution Control Board before participating in the tender process, in so far as the empty Engine Oil Barrels are not cleaned and the cleaning of the barrels would generate hazardous waste, which is harmful to health and environment. According to the petitioner, other similar institutions who sell similar articles insist on such consent, as is evidenced by Ext.P2 tender notice issued by the Southern Railway and Ext.P3 issued by the Mangalore Refinery And Petrochemicals Limited. The petitioner would W.P.(C)No. 12894 of 2009 -2- contend that the 2nd respondent could not have issued a tender notice for sale of “Empty Engine Oil Barrels and Grease Barrels” without such a condition in view of the fact that the Empty Barrels are not cleaned and cleaning of the same would generate hazardous waste. According to the petitioner, the petitioner has the required consent as evidenced by Ext.P4 consent issued by the Kerala State Pollution Control Board and respondents 3 & 4 do not have the same and therefore the petitioner should be preferred for awarding the tender. 2. This is disputed by the 4th respondent, who would contend that, the 4th respondent does have the necessary consent. He would submit that, the 4th respondent has both the Central and State Pollution Control Board's consent. The 3rd respondent would contend that, although he does not have the required consent, he could not be excluded because, as it stands, Ext.P1 tender notification does not insist on such a condition. The Kerala State Road Transport Corporation has filed a counter affidavit producing W.P.(C)No. 12894 of 2009 -3- Ext.R2 (a) issued by the Kerala State Pollution Control Board to them. By that communication, they have been informed by the Kerala State Pollution Control Board that, no authorization from the Pollution Control Board is required for bidders to procure empty, clean grease/oil barrel and ferrous/non-ferrous recyclable metal scrap. They take the stand that, in view of Ext.R2(a) no consent from the Pollution Control Board is necessary for the tenderers to participate in the tender. 3. However the Kerala State Road Transport Corporation could not satisfy me that, the barrels are clean ones so as to come within Ext.R1(a). Of course, counsel would argue that these barrels have been exposed to sun and rain for long and therefore are clean. I am of opinion that, it is idle for the K.S.R.T.C. to contend so. Admittedly, when the barrels became empty they were not cleaned and cleaning of the same would naturally generate hazardous waste. The KSRTC has no contention that they have obtained consent from the Pollution Control Board for W.P.(C)No. 12894 of 2009 -4- cleaning the barrels. Therefore going by Ext.R2(a), consent from the Pollution Control Board is necessary for bidding for purchase of empty barrels of grease/oil. Therefore no tenders could have been invited without a specific condition in the tender notice that the tenderers should have the consent from either the Central or State Pollution Control Board for participating in the tender proceedings. That is exactly what this court held by the interim order dated 24.05.2010 which reads as follows: “1. Ext.P1 is a notice inviting tenders for sale of Empty Engine Oil Barrels and Grease Barrels from seven zonal depots and workshops of KSRTC. Ext.R2 (a) communication of PCB states that no authorization is required from PCB for bidders to procure empty and clean grease/oil barrel and ferrous and non-ferrous recyclable metal scrap. Ext.P1 is for sale of empty barrels in as is where is in condition. The petitioner, who states that he possesses necessary certificate of PCB to handle hazardous waste, states that if work is awarded to persons without such certification, it will offend the Hazardous Waste (Management & Handling) Rules. 2. The PCB, through its learned counsel, takes the stand before me that unless the alleged barrels are clean, the view in Ext.R2(a) would not be available and that cleaning empty barrels would generate hazardous waste which can be handled only under due certification. 3. With the aforesaid, I suggested to the learned counsel for the petitioner that if ultimately his contentions are upheld, he could be awarded the work provided he is willing to pay the highest amount offered by the competitive bidders. This approach was only to avoid delay in the matter W.P.(C)No. 12894 of 2009 -5- since KSRTC has kept the matters still, in spite of the interim order dated 30.4.2009 as per which the finalization of the tender as per Ext.P1 was made subject matter of the result of this writ petition. 4. However, it is inappropriate to take a final decision in the matter without hearing the two other tenderers M/s.Sama Rubbers and M/s. CEE JEE Lubricants whose names and addresses are shown in paragraph 4 of the counter affidavit of the second respondent. Those establishments are, therefore, impleaded as additional respondents in this writ petition. The petitioner shall take out notice to them by special messenger returnable in three days.” 4. In view of my above findings, the K.S.R.T.C could not have invited tenders without incorporating the condition that the tenderers should have obtained consent either from the Central or State Pollution Control Board. Ext.P1 admittedly does not contain such a clause. Therefore Ext.P1 tender notice has been issued in violation of the Pollution Control Laws. Accordingly Ext.P1 is quashed. The 2nd respondent is directed to issue fresh tender notification for the purpose of sale of Empty Engine Oil Barrels and Grease Barrels with the condition that the persons participating in the tender should have obtained consent of the Central or State Pollution Control Board in W.P.(C)No. 12894 of 2009 -6- respect of cleaning empty engine oil barrels and grease barrels. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/