Uttarakhand High Court
WPPIL/93/2022 on 24 November, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE RAMESH CHANDRA KHULBE
WRIT PETITION (PIL) NO. 93 OF 2022
24TH NOVEMBER, 2022
BETWEEN:
Jitendra Yadav .....Petitioner.
And
Union of India & others ....Respondents.
Counsel for the Petitioner : Mr. Dushyant Mainali, learned
counsel.
Counsel for the Union of India : Mr. Azmeen Sheikh, learned
Standing Counsel.
Counsel for the State : Mr. C.S. Rawat, learned Chief
Standing Counsel.
Counsel for the respondent no.5 : Mr. Rajeev Bhatt, learned
counsel.
Counsel for the respondent no.6 : Mr. Aditya Pratap Singh, learned
counsel.
Counsel for the Nagar Palika Parishad : Mr. Ashish Joshi, learned
counsel.
The Court made the following:
ORDER:(per Hon'ble The Chief Justice Sri Vipin Sanghi) On 07.07.2022, while dealing with the matter, this Court had referred to the Plastic Waste Management Rules, 2016, framed under the Environment (Protection) Act, 1986, which were amended on 27.03.2018 by the Plastic Waste Management (Amendment) Rules, 2018. Rules 9, 12 and 13 of the said Amendment Rules had been noticed in particular, and set out in the order itself. Rule 9 sets out the responsibilities of Producers, Importers and Brand Owners in the matter of management of plastic waste.
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2. In Paragraph No.8 of the said order, after noticing the aforesaid Rules, this Court had noticed the obligations of the producers of plastic waste to work out modalities for waste collection system, based on Extended Producers Responsibility, with the involvement of the State Urban Development Departments, or through their own distribution channel, or through the local body concerned. The primary responsibility for collection of multi-layered plastic sachet or pouches, or packaging, is on the producers, importers and brand owners, who introduce their products in the market, by using such non-biodegradable packaging. We noticed that it is their obligation to establish the system for collecting back the plastic waste generated due to their products. After noticing the other relevant Rules, we directed the respondent- Uttarakhand State Pollution Control Board to state on affidavit, as to how many manufacturers, brand owners or importers, have registered themselves with the said Board in terms of Rule 13 of the said Rules. We also sought particulars of those producers, importers, and brand owners who have not sought registration and complied with their obligation under the said Rules, and who are manufacturing plastic products/ raw materials, or are importing into the State, and selling their brand of goods within the State of Uttarakhand, while using non-biodegradable plastic. We also directed that those producers, importers and brand owners, who do not 3 register with the Uttarakhand State Pollution Control Board within the next fifteen days, shall not be permitted to either produce, or import into the State of Uttarakhand, or sell products of their brands in the State of Uttarakhand, and we directed that the State shall ensure that all such products, which are contained in plastic sachets or pouches or packaging, are not permitted to enter the boundary of the State, or sold, in any manner, whatsoever of producers, importers and brand owners who do not register. Wide publicity was directed to be given to these directions by the State, so that all concerned have notice of it.
3. In Paragraph No.17 of our said order, we made it clear that the primary responsibility for collection of used multi-layered plastic, sachets, or pouches, or packaging is of the producers, importers and brand owners, and it is their obligation to prepare their plan for collection and to submit the same to the Uttarakhand State Pollution Control Board while applying for consent. We directed the State Pollution Control Board to require all producers, importers and brand owners to strictly comply with this requirement. We had directed that those producers, importers and brand owners, who do not provide their plans for collection in the next 15 days, shall not be permitted to either produce, import or sell their brands in the State of Uttarakhand, in plastic receptacles.
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4. Mr. Aditya Pratap Singh, who appears for the Uttarakhand State Pollution Control Board, has drawn our attention to the affidavit filed by the Regional Officers, Region Office, Uttarakhand Pollution Control Board, Haldwani dated 22.11.2022.
5. Mr. Singh submits that every month applications are being received for registration. He submits that if a particular producer, importer or brand owner is operating in more than two States, he is required to make the application to the Central Pollution Control Board, and such applications do not come to the Uttarakhand State Pollution Control Board. The State Pollution Control Board has provided the data about the number of applications being received from the producers, importers and brand owners, month wise, for registration. Along with the said affidavit, the plans submitted by some of the producers, such as Hindustan Unilever Limited, Britannia Industries Ltd., Reckitt Benckiser India Private Limited and Perfetti Van Melle India Pvt. Ltd., have been placed on record. Reference has been made to the plans submitted by the Britannia Industries Ltd., and Reckitt Benckiser India Private Limited during the hearing.
6. We are dismayed to notice that the said plans, as placed on record, are completely purposeless and they do not comply either with the aforesaid Rules of 2018, or our order. 5 For example, Britannia has only stated that "Britannia is committed to collect back the post-consumer plastic waste and implement the EPR Action Plan as per the responsibility defined under the PWM Rules, 2016." However, there is no detailed plan placed on record to state, as to how, Britannia intends to collect back the post-consumer plastic waste from each and every nook and corner of the State of Uttarakhand. Same is the position with the other producers, namely Reckitt Benckiser India Private Limited, which enlists plastic waste processing facility, where it is claimed that its plastic waste is either being recycled or, being used for co-processing. Such plans do not comply with the requirements of the Rules aforesaid.
7. Mr. Singh has also drawn our attention to the notification dated 16.02.2022, issued under Sections 3, 6 and 25 of the Environment (Protection) Act, 1986, called the Plastic Waste Management (Amendment) Rules, 2022. Rule 1(2) specifically states that "these guidelines shall come into force with immediate effect. The on-going processes related to Extended Producer Responsibility obligations will be aligned with these guidelines." Therefore, the 2018 Rules continue to apply, and the Amendment Rules, 2022, in fact, seek to lay down further procedures that the Producers, Importers, Brand Owners and Plastic Waste 6 Processors are required to follow, to ensure compliance of their respective obligations, as obligated entities.
8. Mr. Singh submits that CPCB has kept the portal for registration by the Producers, Importers, Brand Owners and Plastic Waste Processors open, and the State Pollution Control Board has issued an order on 18.11.2022 granting 15 days' time to the Producers, Importers, Brand Owners and Plastic Waste Processors to submit their plans.
9. We find that our direction to not permit the Producers, Importers, Brand Owners and Plastic Waste Processors, who do not register, and come forward with their EPR plans within 15 days of the passing of our order, has not been complied with by, either by the Uttarakhand State Pollution Control Board, or even by the State of Uttarakhand. In fact, the order dated 18.11.2022, issued by the Uttarakhand State Pollution Control Board, seeks to overreach our order by granting another 15 days' for the purpose of submission of EPR plans. There is clear breach and willful disobedience of our order by all the functionaries in the State.
10. Merely because the CPCB has kept its portal open for registration is no excuse for the State Pollution Control Board to disregard our order.
11. It is clear to us that there is absolutely no sense of urgency or sincerity being exhibited by the aforesaid 7 authorities in either acting on their own for compliance of their statutory obligations to implement Solid Waste Management in the State of Uttarakhand, or to act even after this Court has goaded them to realize and discharge their statutory obligations. The inaction on the part of the respondents is the height of their irresponsibility in discharge of their respective obligations.
12. Notice is issued to them to show-cause as to why contempt proceedings may not be drawn against them for willful and deliberate disobedience or our direction issued on 07.07.2022. Notice is accepted on behalf of the first three officers by Mr. Rawat and on behalf of the fourth by Mr. Aditya Pratap Singh. We direct the Secretary, Department of Environment, Government of Uttarakhand; the Commissioner, Kumaon Division, Nainital; the Commissioner, Garhwal Division, Pauri, and; the Member Secretary, Uttarakhand Pollution Control Board to personally remain present in the Court on the next date.
13. We are compelled to issue notice to them today after having waited for sufficiently long period of time for reporting compliance of our aforesaid directions. The matter has repeatedly been listed thereafter, when the Court reiterated the said directions, and other directions were issued.
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14. On 12.09.2022, after conduct a local inspection of Village Dhanachuli, we passed an order on some of the aspects which were highlighted during the meeting. One aspect highlighted by Ms. Hansa Lodhiyal, Sarpanch of Van Panchayat, Village Dhanachuli was that the khasra plans/ maps of the Van area are not provided by the Forest Department, despite a request being made, which makes it difficult for her to be able to identify the forest land which may be encroached upon, and littered with non-biodegradable waste and malba. She had also stated that though, legally, she has the authority to take action against violators, she has no police force available with her in the eventuality of the people not complying with her legal directions.
15. In Paragraph No.10 of our order dated 12.09.2022, we had directed all the DFOs to ensure that the khasra plans of the forest lands are forthwith made available to all the Sarpanch of the Van Panchayats. This exercise was directed to be completed positively within two weeks, and compliance reported. We made it clear that non-compliance shall be viewed seriously. We further directed that all the khasra plans should be uploaded on the website of the State Government, so that they can be accessed by everyone concerned. This was necessary to maintain full and complete transparency, and infuse vigilance in the management of forest lands. We had also directed the Secretary, Forests and Secretary, Home 9 to examine the needs of Van Panchayats and the Tehsildars, for provision of adequate security/ police force to enable them to discharge their respective responsibilities. Response of the State was called for before the next date. We had also directed the State to take steps to get a mobile application develop, which should be usable by the public at large, so as to report violation of environmental norms, rules and regulations.
16. All our directions have fallen on deaf ears, and none of them have been complied with. No report has been filed by any of the DFOs, reporting compliance of our direction in Paragraph No.10 of our order dated 12.09.2022, despite the fact that we had made it clear that non- compliance shall be viewed seriously. For non-compliance of our aforesaid direction, we are inclined to initiate proceedings for Contempt of Court. However, before we do so, we grant one more opportunity to all the DFOs to comply with our directions within two weeks. Those DFOs, who do not comply with our directions, shall pay costs of Rs.10,000/- (each) personally, which shall be deposited with the Uttarakhand State Legal Services Authority after expiry of two weeks.
17. A complete list of DFOs in the State of Uttarakhand shall be filed by the Secretary, Environment and Forests within two weeks and shared with the SLSA. The Uttarakhand State Legal Services Authority (SLSA) shall file a report 10 providing the list of DFOs who have deposited the costs, as well as those who have not.
18. Mr. Mainali points out that in Paragraph No.28 of our order dated 07.07.2022, we had directed the local authorities within the State to file their respective affidavits, disclosing as to how they have complied with each of their obligations contained in Section 6 of the Uttarakhand Plastice and Other Non-Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013. We had placed the responsibility on the Secretary, Department of Environment, Government of Uttarakhand to ensure that these directions are communicated to the Chief Executive Officers of all the local authorities for due compliance.
19. Mr. Mainali points out that though, a few affidavits have been filed by the Municipalities, there is no response from the Rural Local Authorities, i.e. Gram Sabha and Gram Panchayat.
20. We direct the Secretary, Panchayati Raj to ensure compliance of the aforesaid direction. A comprehensive report with regard to the Gram Panchayats and Zila Panchayats should be filed in a tabulated form, indicating the compliance of Section 6 of the aforesaid Act of 2013, within two weeks.
21. Mr. Mainali further points out that the notification dated 16.02.2021, issued by the Government of Uttarakhand 11 in terms of Section 3 of the 2013 Act, provides that "the authorities or owners of places of religious worship or institutions, multiplex, malls, hotels and restaurants, cafe, mobile food counters or vans, caterers and other such places like marriage or party halls, offices, or institutions and the outdoor event shall be responsible for ensuring strict compliance of the aforesaid provisions and they shall provide space for collection of plastic waste within their campus and shall send it to the recyclers, duly registered with Uttarakhand Pollution Control Board." He submits that the authorities, or owners of places of religious worship, or institutions, multiplex, malls, hotels and restaurants, cafe, mobile food counters or vans, caterers and other such places like marriage or party halls, offices, or institution or outdoor even organizers, are not complying with the aforesaid obligations, and the Urban Local Bodies are also not ensuring compliance of these obligations, as the non-biodegradable plastic waste generated at such places are being left to be handled by the concerned Urban Local Body.
22. We, therefore, direct the Secretary, Urban Development, and the Secretary, Panchayati Raj to ensure compliance of the aforesaid obligations throughout the State. The status report in this regard shall be filed within two weeks. The status report should also indicate as to how 12 compliance has been made- at local levels on the ground, after issuance of these directions.
23. In Paragraph No.37 of our order dated 07.07.2022, we had directed as follows:-
"37. The District Magistrates, in their respective affidavits, shall also state as to what steps they have taken to comply with the communication dated 25.06.2019, as also the order issued by the Uttarakhand Environment and Pollution Control Board on 28.12.2019, in exercise of the powers under Section 5 of the Environment Protection Act, which too has been referred by the counsel for the petitioner."
24. The communication dated 25.06.2019, as also the order issued by the Uttarakhand Environment and Pollution Control Board on 28.12.2019, obligate the District Magistrates to collect the information with regard to the quantum of non-biodegradable waste being generated within their jurisdiction, and to provide information to the Uttarakhand Environment and Pollution Control Board.
25. Mr. Mainali points out that rather than complying with the said direction, it appears that the State Administration is seeking to shift the burden of collecting the said information/ data on the Uttarakhand Environment and Pollution Control Board. It is clear to us that the said obligation is that of the Administration inasmuch, as it is the Administration which has the information and wherewithal, as the movement of goods which are packed in non- 13 biodegradable plastic into the State, and also within the State. Such movement takes place under the direct control and supervision of the State Administration.
26. We direct the Chief Secretary of the State of Uttarakhand to device a mechanism to report, on a fortnight basis, as to what is the quantity in terms of metric tonnes, of plastic packaging being imported into the State as packaging materials of goods, or being produced within the State. These figures should be worked out on the basis of the import of goods into the State as well as those manufactured/ produced within the State. The Chief Secretary shall file his affidavit in this regard within three weeks.
27. Lastly, it is evident to us that the State functionaries are not sensitized about the issue of Solid Waste Management. It appears that they are not even aware of their respective obligations, responsibilities and duties, as well as the powers vested in them by various enactments, and the Rules framed thereunder, for the purpose of Solid Waste Management.
28. We, therefore, direct the Chief Secretary to ensure that appropriate symposiums are held involving the concerned State, District, and Panchayat Level Authorities, so as to make them aware of the statutory provisions relating to Solid Waste Management, and also to sensitize them with 14 regard to the problems of creation and collection of Solid Waste, and lack of its Management in the State. In the affidavit that the Chief Secretary file, he shall respond to this aspect of the matter as well.
29. All the District Magistrates are again directed to send report to this Court with regard to the number of Producers, Importers, Brand Owner and Manufacturers, who are operating within their respective district. The affidavit in this regard shall be filed within two weeks.
30. Our earlier directions issued in this writ petition from time to time shall continue to be implemented till further orders.
31. List this case on 20.12.2022.
(VIPIN SANGHI, C.J.) (RAMESH CHANDRA KHULBE, J.) Dated: 24th November, 2022 NISHANT