JUDGMENT V. GOPALA GOWDA, C.J. : This writ petition has been filed by the petitioner-company, namely, M/s. Jagannath Plastipacks Ltd. challenging the action of the of the Addl.District Magistrate, Paradeep - O.P. No.2 directing M/s. Paradeep Phosphates Ltd.-O.P. Nos.3 and 4, not to dispatch the Phospo-Gypsum through railway rakes, as a result of which the O.P. Nos.3 and 4 are not allowing the petitioner to transport the Phospho-Gypsum through railway rakes; and praying for the following reliefs : “(i)Issue writ of mandamus quashing the direction of the ADM under Annexure-4, the same infringing the fundamental right of the petitioner under Article 19(1)(g); (ii)allowing the petitioner to continue transportation by railway rakes to Nirgundi; (iii)declare the Memo No.1743 dated 08.12.2011 under Annexure-4 series is inoperative; (iv)direct the ADM/O.P. No.2 not to interfere with the business of the petitioner and PPL in respect of mode of transport; and (v)may pass such other order/orders as deemed just and proper.” 2.The case of the petitioner in brief is that M/s. Paradeep Phosphates Ltd. (hereinafter referred to as ‘PPL’) vide its order dated 01.04.2011 appointed the petitioner-company as its Buffer Stockist for Phospho- Gypsum Bulk by Rail and Road for the year 2011-12. The petitioner has also been authorized for State of Odisha and other neigbouring States for Gypsum operations and accordingly petitioner has been doing the job of transportation of Phospo-Gypsum since 2006 through railway rakes from PPL to Nirgundi (Cuttack) and from that spot, it is transported to different places through trucks. It is stated that Phospho- Gypsum is a waste product of PPL after manufacturing the D.A.P. fertilizers. It is used by the small and marginal farmers, who do not afford for costly D.A.P. fertilizers, as fertilizers in their lands and it is also used by the cement industries as clinker, fly ash manufacturers, Gypsum Board Manufacturers, Plaster Paris Manufacturers as raw material. About 5000 MT of Gypsm come out of the plant of PPL everyday and after it is dried, it is transported to different places. The mode of transportation available at PPL is only by way of railway rakes and trucks. Further, the rate fixed by the railway for transportation of Gypsum from PPL to Nirgundi which is at a distance of about 90 to 100 Kms is at Rs.188.50 per MT. The mode of transportation available at PPL is only by way of railway rakes and trucks. Further, the rate fixed by the railway for transportation of Gypsum from PPL to Nirgundi which is at a distance of about 90 to 100 Kms is at Rs.188.50 per MT. However, the Truck Owners Association, Paradeep has fixed the same at Rs.535/-, which is near about three times of the railway freight. Therefore, it is submitted that if the materials will be transported through truck only, the cost of the Gypsum will go high and it will not be viable on the part of the end users like small and marginal farmers of Odisha. If the transportation cost of a waste material like Gypsum will be increased, ultimately, the end users of Gypsum Board, Plaster Paris, fly ash, & fertilizers etc. will suffer. It is further stated that since 2006 petitioner is transporting the Phospho-Gypsum from PPL to Nirgundi through railway rakes and from Nirgundi it is transported by trucks to different places. The PPL intimated the petitioner vide letter dated 27.12.2011 that the ADM, Paradeep-opp.party No.2 has directed to dispatch Gypsum by road only as pre Memo No.1743 dated 08.12.2011 under Annexure-4, therefore the PPL is unable to dispatch gypsum by railway rakes to Nirgundi. It is alleged that the opposite party No.2 being influenced by the Truck Owners Association of Paradeep has directed the PPL not to allow the petitioner to transport Phospho-Gypsum by rakes and transport the same by road only, which is quite unreasonable. It reveals from the impugned order of the O.P. No.2 that he has considered a fact that as there is a ban on export of iron ore and there is no engagement of the trucks, truck owners are having no source of livelihood. In order to give business to the truck owners, the O.P. No.2 has passed such an order, even though he has no authority to interfere with the business of the petitioner or PPL regarding transportation of gypsum, which is in clear violation of Article 19(1)(g) of the Constitution of India and the same is arbitrary, illegal and in violation of the fundamental rights. In such situation, finding no other remedy, petitioner made a representation to the Chief Secretary on 31.12.2011 requesting him to look into the matter and take necessary action, however, the Government has also taken no action in the matter. In such situation, finding no other remedy, petitioner made a representation to the Chief Secretary on 31.12.2011 requesting him to look into the matter and take necessary action, however, the Government has also taken no action in the matter. In this matter since last 10 months the transportation of Phospho-Gypsum is stalled in business of the petitioner as well as livelihood of about 500 poor workers of the petitioner-company is affected. It is submitted that taking into consideration the livelihood of the truck owners, the O.P. No.2 has taken such a decision and imposed restrictions on the PPL to transport the Phospho-Gypsum only through trucks, but at the same time he has forget about the livelihood of the poor workers who are starving due to stoppage of transportation of the Gypsum and also the far reaching consequence of hike in market price of fertilizers, Plaster of Paris, Gypsum Board, fly ash etc. due to higher transportation charges of Gypsum and the consequence on the public at large. Therefore, it is prayed that taking into all the fact situation into consideration, the order under Annexure-4 may be quashed and a direction may be issued to the opposite party No.2 not to interfere with the business of the petitioner and PPL in respect of mode of transportation of Gypsum and allow the petitioner to transport the same through railway rakes from PPL to Nirgundi. 3.Truck Owners Association-O.P. No.5, represented by its President, B.B. Pattnaik, has filed a preliminary counter affidavit stating that the writ petition is devoid of any merit and not maintainable for the reason that a writ petition to enforce the fundamental rights such as Article 19 (1)(g) at the behest of a company is not maintainable. Further, no relief can be claimed against the opposite parties, 3, 4 and 5, as they are not statutory authorities or State within the meaning of Article 12 of the Constitution of India. O.P. Nos.3 & 4 are companies whose shareholders are of private entities and are not amenable to writ jurisdiction of this Court. It is further stated that a meeting was conducted in the Chambers of the O.P. No.2 on 05.12.2012. O.P. Nos.3 & 4 are companies whose shareholders are of private entities and are not amenable to writ jurisdiction of this Court. It is further stated that a meeting was conducted in the Chambers of the O.P. No.2 on 05.12.2012. He being the custodian of the law and order situation in Paradeep, he invited all parties to have a mututal discussion in the said matter to remove the impasse which arose out of the dissension of the truck owners as they were rendered jobless on account of total stoppage of their work due to the closure of mining activities in the State. In the said meeting the representative of the petitioner-company, namely, Prakash Chandra Swain was also present. All the parties agreed that certain amount of gypsum sold by O.P. No.3 would be carried by truck and the entire would not be carried by rail, to bring about rehabilitation of the truck owners. There are two industries operating in Paradip area selling Gypsum, one is opposite party No.3 and the other is IFFCO. Everyday both by rail and trucks gypsum is being carried to different places in the country. Further, the representations made by the petitioner under Annexures-5 and 6 reveal that its prayer is to transport the gypsum both by rail and trucks and to fix up the proportion thereof. Therefore, the petitioner cannot have any grievance in this matter. It is further submitted that in the railway rakes the gypsum is carried in open exposed to weather, which is hazardous to the environment, whereas in trucks they are carried in sealed condition being covered by tarpaulin and tied through strings, so there will be no environmental pollution. The entire gypsum is carried to industrialists, who are the end users. It is further submitted that if proportion is fixed for transportation of the gypsum through rail as well as through trucks, the opp.party No.5-Association would have no objection. 4.A counter affidavit has been filed by the opposite party No.2-A.D.M., Paradeep, on behalf of the O.P. Nos.1 and 2. It is stated that the action of the O.P. No.2 is neither arbitrary nor illegal, rather the same is in the interest of the general public and to avoid law and order problem in the area. 4.A counter affidavit has been filed by the opposite party No.2-A.D.M., Paradeep, on behalf of the O.P. Nos.1 and 2. It is stated that the action of the O.P. No.2 is neither arbitrary nor illegal, rather the same is in the interest of the general public and to avoid law and order problem in the area. Further, the impugned letter under Annexure-4 is not an Order by O.P. No.2 but a resolution of the meeting/minutes of discussion held in the presence of representatives of the petitioner and O.P. No.5-Association. The O.P. No.2 along with the S.D.P.O., Paradeep and IIC, Paradeep and IIC, Paradeep Police Station have taken the decision to amicably resolve the stoppage of transportation of Gypsum through Railway rakes by O.P. No.5 by way of sitting in dharana/demonstration on the railway track on 25.11.2011. Therefore, such step by the District Administration was necessitated to avoid law and order problem in the area. It is also not true that the O.P. No.2 forced both the PPL and the petitioner to transport the Gypsum through trucks only. Resolution of the meting in which representatives of the petitioner and O.P. No.5 were present has only been transmitted to the PPL and the petitioner and letter under Annexure-4 is issued only to safeguard the interest of general public to avoid law and order situation in the area and to maintain peace in the area. Further, the Co-ordination Committee of Truck Owners Association submitted a representation on 01.11.2011 before the Collector & District Magistrate, Jagatsinghpur with a copy to O.P. No.2 and PPL authority to allow Trucks of the Committee to transport Fertilizer and Gypsum instead of railway rakes, as their financial condition has worsened due to non-engagement of trucks pushing them to no source of livelihood. Again the O.P. No.5 Association submitted an application dated 18.11.2011 before the O.P. Nos.1 & 2 to consider their claim sympathetically and allow them to be engaged for transportation of Gypsum, else they would come down to road. Thereafter, on 25.11.2011 the members of Association sat on the railway tracks paralyzing transportation of Cargo through rail. Finding no other way out, the meeting was arranged by the District Administration on 5.12.2011 for amicable settlement of the issue. Thereafter, on 25.11.2011 the members of Association sat on the railway tracks paralyzing transportation of Cargo through rail. Finding no other way out, the meeting was arranged by the District Administration on 5.12.2011 for amicable settlement of the issue. The representative of the petitioner who was present in the said meeting was impressed upon to come to an agreeable rate with the O.P. No.5 for transportation of the Cargo by truck, transportation of gypsum through rakes outside the State was not disturbed. Therefore, the order under Annexure-4 is not a direction rather it is a resolution passed in presence of all the stake holders to come to an end of the issue and law and order situation. Therefore, it is submitted that there is no violation of Article 19(1)(g) of the Constitution as alleged by the petitioner. Hence, it is prayed that the writ petition may be dismissed. 5.During pendency of the writ petition, this Court directed the State Pollution Control Board (in short ‘SPCB’) to be impleaded as an opposite party and notice was issued to it to file its statement of counter. Accordingly, the SPCB has filed this counter by its law officer along with document under Annexure-A/6. It is submitted by the SPCB that as per the query of the Court a report was sought for from the Senior Environmental Engineer of the SPCB with regard to handling and transportation of the Phospho-Gypsum from PPL. The Sr. Environmental Engineer of the SPCB has prepared a report under Annexure-A/6. It is submitted in the affidavit of O.P. No.6-SPCB that the Hazardous Waste (Management, Handling and Transboundary Movement) Rule, 2008 (in short ‘Rules, 2008’) was framed to handle Hazardous waste as specified in the Schedule of the said rule. The Rule defines the hazardous waste which is to be regulated under the Rule. Rule 3(1)(i) states that waste specified in Schedule-I will be considered as hazardous waste. As per Schedule-I of the Rule,2008 Phospho-Gypsum has been excluded from the list of hazardous waste and is categorized as high volume low effect waste. Even though Phospho-Gypsum is not hazardous, its volume being high, it needs to be regulated as per a guideline to be prepared by the Central Pollution Control Board (CPCB). The CPCB is in the process of preparation of the guidelines, however the SPCB has formulated a guideline for safe management of gypsum in railway siding and stockyards. Even though Phospho-Gypsum is not hazardous, its volume being high, it needs to be regulated as per a guideline to be prepared by the Central Pollution Control Board (CPCB). The CPCB is in the process of preparation of the guidelines, however the SPCB has formulated a guideline for safe management of gypsum in railway siding and stockyards. 6.Learned Sr. Counsel Mr. R.K. Rath on behalf of O.P. No.5 placed reliance upon paragraphs 4 & 6 of the report under Annexure-A/6, wherein the SPCB has taken the stand that even though the Phospo-Gypsum is not hazardous-its volume being high, it needs to be regulated as per a guideline to be prepared by the CPCB, which is in the process of preparation of the guidelines and further for gain use of Phospho-Gypsum from PPL and IFFCO, the gypsum is transported either through trucks or through rakes. When the Phospho-Gypsum is transported by trucks from point to point, without any intermediate storage, no significant environmental impact is envisaged. However, when the gypsum is transported through rakes, it is stored at the railway siding, therefore, the siding has to develop certain additional infrastructure as per the guidelines of SPCB to ensure environmentally safe handling of this waste. Similarly, the petitioner-company was also directed to develop necessary infrastructure for pollution control at its stock-yard vide Board’s letter dated 07.09.2010. 7.O.P. No.5 has filed an affidavit annexing the documents under Annexure-C/5 series and stated that the SPCB, Orissa has in the practice of issuing permission/authorization to different parties for handling, collection, transport of Phospho-Gypsum from its origin i.e. M/s. IFFCO Ltd. Paradeep and O.P. No.3 at different points of time: Accordingly on 02.01.2010 the SPCB issued an authorization to M/s. Care products for handling, collection and transportation of Phospho-Gypsum from IFFCO Ltd. to Jagatpur wherein it is categorically instructed to transport the Gypsum through means of Truck adhering to various provisions of the MV Act as well as Rules, 19, 20, 21 of Hazardous Waste (Management, Handling and Transboundary Movement, Rules, 2008. Like wise, the SPCB while issuing the authorization to the petitioner has also instructed the petitioner to transport the Phospho-Gypsum is accordance with certain restrictions. But the petitioner-company is not implementing the same. Therefore, it is prayed that taking into the aforesaid fact situation, the writ petition may be dismissed. Like wise, the SPCB while issuing the authorization to the petitioner has also instructed the petitioner to transport the Phospho-Gypsum is accordance with certain restrictions. But the petitioner-company is not implementing the same. Therefore, it is prayed that taking into the aforesaid fact situation, the writ petition may be dismissed. 8.An additional affidavit has also been filed on behalf of the petitioner stating therein that Phospho-Gypsum has been referred to as fertilizer by the Ministry of Agriculture, Govt. of India and it is not a hazardous waste under Rules, 2008. Further the SPCB has even framed guidelines to govern the transportation of gypsum by rail, which is produced under Annexure-9. 9.It is further submitted by the learned Sr. Counsel Mr. Mishra on behalf of the petitioner that as to whether the transportation of the Phospho-Gypsum by rail is hazardous or not is not the issue in this writ petition. The sole issue involved in this writ petition is as to whether the action of the opposite party No.2 in directing the PPL and petitioner to stop transportation of the Phospho-Gypsum from PPL to Nirgundi through railway rakes and transport the same through trucks is valid or not. It is also clear from the report of the SPCB that the Phospho-Gypsum is not coming under hazardous materials. Therefore, it is for the convenience of the PPL and petitioner-company to transport the same by rail or by truck. Further, it is submitted that the Phospho-Gypsum is transported by the petitioner from PPL up to Nirgundi and from Nirgundi to other places it is being transported by trucks. Therefore, only to protect the interest of the O.P. No.5-Association and on being threatened by them by giving dharana etc., the opposite party No.2 should not have imposed restrictions upon the PPL and petitioner to transport the Phospho-Gypsum to Nirgundi through trucks only, which will be very much expensive to the petitioner. Therefore, it is prayed that the writ petition may be allowed. 10.With reference to the aforesaid factual and rival legal contentions urged on behalf of the parties, the question that would arise for consideration of this Court are, (1) as to whether the O.P. No.-2 ADM, Paradeep could have issued the impugned order under Annexure-4 calling upon the petitioner and PPL to transport the Phospho-Gypsum only by trucks ? (2) as to whether the said order is legal and valid ? (2) as to whether the said order is legal and valid ? and (3) what order ? 11.It appears from the Certificate issued in favour of the petitioner by the O.P. No.3 under Annexure-1 that petitioner is the authorized Buffers Stockist for the states of Odisha, Jharkhand, Bihar, Chhatisgarh, Madhyapradesh, Uttar Pradesh, Maharashtra, Andhrapradesh, Karnataka, West Bengal etc. It is an undisputed fact that petitioner has been carrying on his business of transporting the Phospho-Gypsum from PPL to Nirgundi since 2006 by railway rakes and from Nirgundi to other places by trucks. However, the same has been dis-continued by the O.P. No.2 vide Memo dated 8.12.2011. It is stated by the opposite party No.2 that a Co-ordination Committee meeting was conducted by O.P. No.2 and discussions were made in the presence of the represenatives of the petitioner as well as O.P. No.5-Association and decision was taken that all gypsum transported through rakes inside Odisha by traders will be carried out by local truck owners by road to different destinations. It is stated by the O.P. No.2 that such a decision has been taken to restore normalcy of law and order situation, in the area, said to have been created by the Members of the O.P. No.5’s Association by demonstrating bandh and dharana. We have carefully gone through the resolution passed on 05.12.2011 in the Meeting held in the Conference Hall of Additional District Magistrate, Paradeep, in presence of the SDPO, Paradeep & IIC, Paradeep and eight representatives of O.P. No.5’s Association and one representative of petitioner-company. The relevant portion of the resolution reads thus : “As per decision of the previous meeting, the transporters/Traders of Fertilizer and gypsum were asked by PPL authority to attend today’s meeting to find out amicable solution with JCC to TOA. The claim of JCC of TOA was that all gypsums/fertilizers transported from PPL inside Orissa either in bags or loose should allow to be carried out by local trucks instead of railway rakes as they were doing the same two years back. They brought to the nature of the administration their pitiable condition consequent upon ban on export of iron ore and how non-engagement of trucks have pushed them to the wall having no source of livelihood. They brought to the nature of the administration their pitiable condition consequent upon ban on export of iron ore and how non-engagement of trucks have pushed them to the wall having no source of livelihood. The Traders they say are transporting sypsum by rakes to Manguli and from there by trucks to different destination of the state and thereby depriving them of their bread and butter. The transporter/traders present in the meeting did not agree to part with the job to local trucks and requested for another discussion to sort out the issue. After threadbare discussion, it was resolved that all gypsum transported through rakes inside Odisha by traders will be carried out by local truck owners by road to different destinations as the same job was previously undertaken by them.” 12.After going through the aforesaid resolution, it is very much clear that the same is not traceable to any provisions of the Motor Vehicles Act or any other Act or Rules. There is no such provision in any Act or Rules that the Gypsum should be transported only through trucks inside ‘Odisha and not by rail. Further, no where the State Pollution Control Board or its Sr. Environmental Engineer vide report under Annexure-A/6 has stated that it will be hazardous to transport the Phospho-Gypsum through rail. However, it is stated by the SPCB that though the Phospho-Gypsum is not hazardous, its volume being high, it needs to be regulated as per a guideline to be prepared by the CPCB. It is a fact that said guidelines has not yet been prepared. However, the SPCB has formulated a guideline for safe management of gypsum in railway siding and stockyards and as per the said guidelines the siding has to be developed to ensure environmentally safe handling of this waste. At paragraph 7 of the report it is stated that in the instant case the PPL has developed its railway siding as per the guidelines of SPCB for transporting Phospho-Gypsum from its DAP plant and similarly the petitioner was also directed to develop necessary infrastructure for pollution control at its stack-yard. In fact the disputes in question not relates to maintenance of stock-yard or railway siding. It relates to transportation of Phospho-Gypsum from PPL to Nirgundi either by railway rakes or trucks. Learned Sr. In fact the disputes in question not relates to maintenance of stock-yard or railway siding. It relates to transportation of Phospho-Gypsum from PPL to Nirgundi either by railway rakes or trucks. Learned Sr. Counsel for the petitioner rightly placed reliance upon aforesaid Rules, 2008 and provisions of the Environmental Protection Act and submitted that in transportation of Phospho-Gypsum neither any provisions of Rules, 2008 or Environmental Protection Act is attracted. Further, it is not a vested right of the Truck Owner’s Association-O.P. No.5 to claim that materials of a company should be transported only through trucks and not by rail. Further, on the basis of the representations of the Truck Owner’s Association and for their conduct by dharana or strike, the O.P. No.2 should not have passed resolution to the effect that all gypsum transported through rakes inside Odisha by traders will be carried out by local truck owners by road to different destinations, which is not permissible under any law. It is not disputed that the Phospho-Gypsum was being transported by the petitioner by railway rakes from PPL to Nirgundi and thereafter the same was being transported throughout the State by trucks. As the demand of the O.P. No.5’s Association was not fulfilled it might have led to dharana in the siding or railway lines and that might be the main reason for the O.P. No.2 to convene a meeting to resolve the issue, but while resolving the issue passing order to the extent that the Gypsum will be transported inside Odisha only by trucks is not valid and legal. There is absolutely no right conferred upon the truck owners to claim for transport of the materials only through trucks and not by rail and in that manner they scan fix the tariff as they like, which would be arbitrary and unreasonable. However, if the demand of the Association is taken sympathetically, it would be appropriate to first determine the percentage of Phospho-Gypsum that will be carried from PPL to Nirgundi through trucks and through railway rakes and also the reasonable tariff/charges of truck from PPL to Nirgundi. However, if the demand of the Association is taken sympathetically, it would be appropriate to first determine the percentage of Phospho-Gypsum that will be carried from PPL to Nirgundi through trucks and through railway rakes and also the reasonable tariff/charges of truck from PPL to Nirgundi. 13.Considering the entire fact situation of the case, it would be necessary for this Court to direct the Revenue Divisional Commissioner, Cuttack to conduct an enquiry and call upon the concerned parties like PPL, petitioner-company and O.P. No.5’s Association to fix the tariff rates for transportation of Phospho-Gypsum by truck from PPL to Nirgundi or any other place in the State or any other destination on the basis of the prevailing rate with the help of Motor Vehicle Department of the State and if required by obtaining statistics from nearby State; and also determine the percentage of quantity of Phospho-Gypsum to be transported from PPL to Nirgundi both through rail and/or by trucks. The aforesaid exercise shall be completed by the RDC, Cuttack as early as possible, preferably within a period of four weeks from the date of receipt of a certified copy of this order. 14.The resolution passed and impugned order/memo issued under Annexure-4 is quashed. The opposite party-PPL shall allow the petitioner to transport the Phospho-Gypsum by railway rakes till the decision is taken by the RDC, subject to imposing condition on the petitioner that it must develop the additional infrastructure as per the guidelines of SPCB to ensure environmentally safe handling of the waste at its stockyard. In the result, the writ petition is allowed to the extent indicated above. B.K. MISRA, J.I agree. Petition allowed.