Karnataka High Court
M/S. 360 Degree Prints Pvt., Ltd., vs The State Of Karnataka on 3 January, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
1/21
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
WRIT PETITION No.58386/2017 (LB-BMP)
Between:
M/s. 360 Degree Prints Pvt., Ltd.,
A Company incorporated under the
Indian Companies Act
At No.16, 1st Floor
Near Nagasandra Metro Station
8th Mile, Tumkur Road
Bengaluru-560 073. ...Petitioner
(By Mr. G.S. Venkat Subba Rao, Advocate)
And:
1. The State of Karnataka
By its Secretary
Dept. of Industries & Labour
Bengaluru-560 001.
2. The Commissioner
Bruhath Bengaluru Mahanagara Palike
N.R. Square, Bengaluru-560 002.
3. The Health Inspector
Dasarahalli Zone
Bruhath Bengaluru Mahanagara Palike
Bagalagunte, Bengaluru-560 073.
... Respondents
(Mr. D.R. Anandeeswara, HCGP for R1
Mr. T.M. Venkata Reddy, Advocate for R2 & R3)
Date of Order 03-01-2018 W.P.No.58386/2017
M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
2/21
****
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India, praying to issue a writ in the
nature of certiorari quashing the impugned order/notice
dated 8-12-2017 bearing No.BBMP/AaE/DaVI/PR/136/17-
18 issued by the Health Officer, Dasarahalli Zone, BBMP,
Baglagunte, Bengaluru-73 which is the 3rd respondent
herein vide Annexure-A & etc.,
This Writ Petition coming on for Orders this day, the
Court made the following:-
ORDER
Mr. G.S. Venkat Subba Rao, Advocate for Petitioner Mr. D.R. Anandeeswara, HCGP for R1; Mr. T.M. Venkata Reddy,Advocate for R2 & R3
1. The petitioner, M/s.360 Degrees Prints Private Limited, Bengaluru has filed this writ petition in this Court on 22/12/2017 aggrieved by the Notice issued by the Joint Commissioner of Respondent -
BBMP vide Annexure A on 08/12/2017 directing it to stop the business of Flex printing as it causes Animal and public health concerns and damages the beauty of the Bangalore City.
Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
3/212. The said Notice was issued by the Health Officer of the BBMP under the directions of the Joint Commissioner of the Respondent - BBMP.
3. The said officials were summoned to the Court.
4. The learned counsel for the Respondent BBMP appeared and produced before the Court a Notification issued by the Forest, Ecology and Environment Secretariat of the Government of Karnataka on 11/03/2016 in consonance with the provisions of the Environment (Protection) Act, 1986 read with Article 48-A of the Constitution of India which enjoins upon the State to ensure to protect and improve the environment under which subordinate legislation, the State Government has issued the said Notification on 11/03/2016, banning and prohibiting the manufacture, supply, sale and use of plastic carry bags, plastic banners, plastic buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
4/21cling films and plastic sheets used for spreading on dining table including the above items, and in the same sequence, the Commissioner of the Respondent - BBMP also issued a Circular on 04/05/2016. The relevant extract of the Notification dated 11/03/2016 and the Circular dated 04/05/2016 are quoted below for ready reference:-
BRUHAT BENGALURU MAHANAGARA PALIKE NO: Comm/PR/774/2016-17 Office of the Commissioner, Bruhat Bengaluru Mahanagara Palike N.R.Square, Bangalore-560002.
Dated:04-05-2016 CIRCULAR Sub: Ban of Plastics & Penalty impose in Bruhath Bengaluru Mahanagara Palike Ref:No.FEE 17 EPC2012, Bangalore, Dated:11.03.2016 Bengaluru generates around 4000 Mt of MSW Per day. In that it is estimated that 350 to 400 MT of Plastic generates per day. Day by day generation of waste is increasing and affecting the environment.
Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
5/21Whereas, plastic carry bags and other plastic items used in daily life cause short term and long term environmental damage and health hazard.
And whereas, Article-48-A of the Constitution of India, inter alia envisages that the state shall endeavor to protect and improve the environment.
And whereas, it has come to the knowledge of the Government that, the use of plastic carry bags, banners, buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table and items that are made of thermocol are causing serious environmental hazards and affects health of human beings as well as animals;
And whereas, it is observed that the plastic wastes is also causing blockage of gutters sewers and drains apart from resulting in pollution of water bodies in urban areas;
And whereas, with a view to prevent the recurrence of such problems, the State Government in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986, issues the following directions imposing ban on manufacture, supply, sale and Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
6/21use of plastic carry bags, plastic banners, plastic buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table including the above items made of thermocol and plastic which use plastic micro beads in the state. This notification comes into effect from the date of its publication in the official Gazette.
No person including shopkeeper, vendor, wholesaler, retailer, trader, hawker or salesmen shall use plastic carry bags, plastic banners, plastic buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table irrespective of thickness including the above items made of thermocol and plastic which use plastic micro beads. Further, no industry or person shall manufacture, supply store, transport, sale and / or distribute plastic carry bags, plastic banners, plastic buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table irrespective of their thickness including the above items made of thermocol and plastic which use plastic micro beads in the state.
Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
7/21Provided that, the plastic used for the following purposes and circumstances are exempted from this notification;
a) The plastic carry bags manufactured exclusively for export purpose against any export orders in a plastic industry located in Special Economic Zone (SEZ) and Export Oriented Units(EOU)
b) The plastic bags which constitute or form an integral part of packaging in which goods are sealed prior to use at manufacturing /processing units.
c) The plastic bags and sheets used in forestry and Horticulture nurseries against the orders from the Govt. Departments or from the firms concerned.
d) The plastic used for packing of milk and milk products ( Dairy products) In continuation the Commissioner, Joint Commissioner, Revenue Officers, all Health Officers and all Engineers of BBMP shall enforce this direction in exercise of power conferred on them by Law in their jurisdiction. By invoking power under section 431 (A) of Karnataka Municipal Corporation (amendment) Act 2013, Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
8/21following penalties can be imposed.
To implement the above notification it is required to impose penalty on Manufacturing, Supply, store, transport sale and/or distribute, usage of plastic items.
Penalty
Penalty for
for the
the first
Sl. offence in second
Rs.
No Offences and
subsequent
offence
in Rs.
1 Manufacture of plastic carry bags, 2,00,000/- 5,00,000/-
plastic banners, plastic bunting, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table irrespective of thickness including the above items made of thermocol and plastic which use plastic micro beads. Further, no industry or person shall manufacture, supply store, transport, sale and /or distribute plastic carry bags, plastic Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
9/21banners, plastic bunting, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table irrespective of their thickness including the above items made of thermocol and plastic which use plastic micro beads in the state.
2 Storage of plastic carry bags, plastic 1,00,000/- 2,00,000/- banners, plastic buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table irrespective of thickness including the above items made of thermocol and plastic which use plastic micro beads, Further, no industry or person shall manufacture, supply, store, transport, sale and/or distribute plastic carry bags, plastic plates, plastic cups, plastic flex, plastic flags, plastic plates, plastic cups, plastic spoons, clings films and plastic sheets used for spreading on dining table irrespective of their thickness including the above items made of Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
10/21thermocol and plastic which use plastic micro beads in the State. 3 Trading, retailing selling of plastic 50,000/- 1,00,000/- carry bags, plastic banners, plastic buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table irrespective of thickness including the above items made of thermocol and plastic which use plastic micro beads., Further, no industry or person shall manufacture, supply store, transport, sale and /or distribute plastic carry bags, plastic plates, plastic cups, plastic, flex, plastic flags, plastic plates, plastic cups, plastic spoons, clings films and plastic sheets used for spreading on dining table irrespective of their thickness including the above items made of thermocol and plastic which use plastic micro beads in the State.
Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
11/214 User of plastic carry bags, plastic 25,000/- 50,000/- banners, plastic buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table irrespective of thickness including the above items made of thermocol and plastic which use plastic micro beads.
Further, no industry or person shall manufacture, supply, store, transport, sale and/or distribute plastic carry bags, plastic plates, plastic cups, plastic flex, plastic flags, plastic plates, plastic cups, plastic spoons, clings films and plastic sheets used for spreading on dining table irrespective of their thickness including the above items made of thermocol and plastic which use plastic micro beads in the State.
a) Commercial users 25,000/- 50,000/-
b) Domestic users 500/- 1,000/-
Sd/-
Commissioner
BBMP
Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
12/21Copy to:
1. The personal Secretary of Worshipful Mayor to bring to the notice of Worshipful Mayor
2. The Deputy Mayor-for kind information
3. The Chairman, Public Health Standing Committee-
for kind information.
4. The Special Commissioner (SWM)
5. The Joint Commissioner (Health & SWM)
6. All the Zonal Joint Commissioners/CEs/Ses for necessary action
7. CE SWM for necessary action
8. CHO for necessary action
9. All the Zonal HO's DHO's MOH's for necessary action
5. The Notification dated 11/03/2016 issued by the Government of Karnataka is also reproduced herewith for ready reference.
FOREST, ECOLOGY AND ENVIRONMENT SECRETARIAT NOTIFICATION No.FEE 17 EPC 2012, Bangalore, Dated 11.03.2016 Whereas, plastic carry bags and other plastic items used in daily life cause short Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
13/21term and long term environmental damage and health hazard;
And whereas, Article 48-A of the Constitution of India, inter alia envisages that the state shall endeavor to protect and improve the environment.
And whereas, it has come to the knowledge of the Government that, the use of plastic carry bags, banners, buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table and items that are made of thermocol are causing serious environmental hazards and affects health of human beings as well as animals;
And whereas, it is observed that the plastic wastes is also causing blockage of gutters sewers and drains apart from resulting in pollution of water bodies in urban areas;
And whereas, with a view to prevent the recurrence of such problems, the State Government in exercise of the powers conferred under Section 5 of the Environment (Protection) Act, 1986, issues the following Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
14/21directions imposing ban on manufacture, supply, sale and use of plastic carry bags, plastic banners, plastic buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table including the above items made of thermocol and plastic which use plastic micro beads in the state. This notification comes into effect from the date of its publication in the official Gazette.
DIRECTION No person including shopkeeper, vendor, wholesaler, retailer, trader, hawker or salesmen shall use plastic carry bags, plastic banners, plastic buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, cling films and plastic sheets used for spreading on dining table irrespective of thickness including the above items made of thermocol and plastic which use plastic micro beads. Further, no industry or person shall manufacture, supply, store, transport, sale and / or distribute plastic carry bags, plastic banners, plastic buntings, flex, plastic flags, plastic plates, plastic cups, plastic spoons, Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
15/21cling films and plastic sheets used for spreading on dining table irrespective of thickness including the above items made of thermocol and plastic which use plastic micro beads in the state.
Provided that, the plastic used for the following purposes and circumstances are exempted from this notification;
a) The plastic carry bags manufactured exclusively for export purpose against any export orders in a plastic industry located in Special Economic Zone (SEZ) and Export Oriented Units(EOU)
b) The plastic bags which constitute or form an integral part of packaging in which goods are sealed prior to use at manufacturing /processing units.
c) The plastic bags and sheets used in forestry and Horticulture nurseries against the orders from the Govt. Departments or from the firms concerned.
d) The plastic used for packing of milk and milk Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
16/21products ( Dairy products)
2. That the following officers shall enforce this direction in exercise of power conferred on them by law in their jurisdiction.
a) The Commissioner, Joint Commissioner, Revenue Officers, all Health Officers and all Engineers of BBMP.
b) All Deputy Commissioner of the districts.
c) All commissioner of City Corporations, Chief Officers, Health Officers and all Engineers Of Urban Local Bodies.
d) All Assistant Environmental Officers, Deputy Environmental Officers, Environmental Officers and Senior Environmental Officers of KSPCB.
e) All Assistant Commissioners of Revenue Sub Divisions.
f) Tahsildars of all Taluks.
g) All officers of Commercial Tax Department.
Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
17/21h) All Officers of Department of Food and Civil Supplies,
i) The Controller, Deputy Controller and Regional Officers of Legal Metrology Department.
3. That the following officers shall take cognizance of offences and initiate legal action in case of noncompliance of this direction as per the powers conferred on them under section 19 of the Environment (Protection) Act,1986 and to file Complaint in the jurisdictional Court of law on all violators.
a) Secretary to Government (Ecology & Environment), Forest, Environment and Ecology Department.
b) Chairman and Member Secretary, KSPCB
c) Deputy Commissioners of the Districts.
d) Assistant Commissioners Of Revenue Sub Divisions.
e) Regional officers of KSPCB.
Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
18/21Explanation 1- "Plastic" Means any of the items mentioned in the direction made out of poly propylene (PP), non -woven poly propylene, multi layered co-extruder poly propylene, poly ethylene (PE), poly vinyl chloride (PVC), high and low density poly ethylene (UDPE & LDPE) Poly styrene (PS) which is also called thermocol, poly amides (Nylon), poly lerephthalatc (PT) poly methyl methactrylatc (PMM) and plastic micro beads.
Explanation 2- The Word "Carry bag" will have the same meaning that is provided in Rule 3 (b) of the plastic waste (management and Handling) Rules, 2011. In this definition exemption is provided for plastic bag that constitute or form an integral part of packaging in which goods are sealed prior to use. Explanation 3- Karnataka State Pollution Control Board shall be responsible for enforcement regarding the function specified in clause (a) of Rule 4 of the plastic waste (management and Handling) Rules, 2011 and urban Local Bodies shall be responsible for enforcement regarding the functions specified in clause (b) of rule 4 of the said Rules;
Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors.
19/21Explanation 4- Officers as mentioned in Government of India's Notification No.S.O 394 (E) dated 16-04-1987 amended from time to time are authorized to file complaints against violation of directions included in this notification under Section 19 of the Environment (Protection) Act, 1986.
By order & in the name of the Governor of Karnataka, Sd/-
Mahendra Jain Additional Chief Secretary to Government, Forest, Ecology and Environment Department"
6. The learned counsel for the Respondent upon instructions from the officials present before the Court also submitted before the Court that the petitioner even does not have a Trade Licence to manufacture and sell the aforesaid products including printing of flex sheets etc.
7. He has drawn the attention of the Court towards Section 353 and Schedule 10 enacting the said Section 353 of the Karnataka Municipal Corporations Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors. 20/21 Act, 1976, which inter alia requires such Trade Licence for manufacturing, printing, storing and selling of plastic materials.
8. In view of the aforesaid, the Notice issued by the Respondent, Medical Officer of the Respondent - BBMP upon the instructions of the Joint Commissioner of BBMP, cannot be said to be illegal or without jurisdiction and it is for the petitioner to satisfy the said Authorities that the business activity carried out by it is not hit by the aforesaid Notification dated 11/03/2016 and Circular dated 04/05/2016 and the said activity can still be allowed subject to obtaining of the Trade Licence by the petitioner.
9. In view of this, it is left free for the petitioner to approach the Respondent Authority and make out a case before them for giving it the Trade Licence though the said trade activity prima-facie appears to be prohibited by the aforesaid quoted Notification and Circular.
Date of Order 03-01-2018 W.P.No.58386/2017 M/s. 360 Degree Prints Pvt., Ltd., Vs. The State of Karnataka & Ors. 21/21
10. However, this Court would not express any opinion at this stage on the specific case of the petitioner and therefore it is left free for the petitioner to establish its case in pursuance of the impugned Notice Annexure A dated 08/12/2017 before the concerned Authorities of the Respondent - BBMP.
11. The present Writ Petition is accordingly disposed of. No order as to costs.
12. The petitioner may appear before the said Authority, in the first instance on 08-01-2018 and the concerned Authorities will pass speaking orders in accordance with law, expeditiously, preferably within a period of two weeks thereafter.
Sd/-
JUDGE BMV*