Uttarakhand High Court
WPPIL/93/2022 on 9 January, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
WRIT PETITION (PIL) NO. 93 OF 2022
9TH JANUARY, 2023
BETWEEN:
Jitendra Yadav .....Petitioner.
And
Union of India & others ....Respondents.
Mr. Dushyant Mainali, learned counsel for the petitioner.
Mr. Lalit Sharma, learned Standing Counsel for the Union of India.
Mr. Pradeep Joshi, learned Additional CSC, with Mr. Vikas Pande, learned
Standing Counsel for the State.
Mr. Rajeev Bhatt, learned counsel for the Central Pollution Control Board.
Mr. Aditya Pratap Singh, learned counsel for the State Pollution Control Board.
Mr. Ashish Joshi, learned counsel for the Nagar Palika Parishad, Haldwani.
Mr. Piyush Garg, learned counsel for the applicant in IA No.12 of 2022.
Mr. Siddhartha Singh and Mr. Hari Mohan Bhatia, learned counsels for the
applicants in IA Nos.13 and 14 of 2022.
Ms. Khushboo Tiwari Sharma, learned counsel for the applicants in IA Nos.15
and 16 of 2022.
Mr. Sandeep Tiwari, learned counsel for the applicant in IA No.18 of 2022.
Dr. Abhishek Manu Singhvi, Mr. Arvind Vashisth, Mr. Rajiv Nayyar, learned
Senior Counsels assisted by Mr. Ajay Bhargava, Mr. Aditya Singh, Mr.
Shantanu Chaturvedi, Mr. Mayank Joshi and Ms. Prerna Singh, learned
counsels for the applicants in IA Nos.20 and 21 of 2022.
The Court made the following:
ORDER:(per Hon'ble The Chief Justice Sri Vipin Sanghi) IA No. 20 of 2022 (Miscellaneous application) This application has been moved by the Cement Manufacturers' Association, Shree Cement Ltd., Ambuja Cement Ltd. and Ultratech Cement Ltd. The reliefs sought in this application are following:
"a. Allow the present application and recall the directions issued in Paragraphs 16 & 17 of the order 2 dated 07.07.2022 passed by this Hon'ble Court in Writ Petition (PIL) No. 93 of 2022 qua members of the Applicant No.1 association including Applicant No. 2 - Shree Cement Limited, Applicant No. 3 - Ambuja Cement Limited and Applicant No. 4 - Ultratech Cement Limited;
b. Consequently, direct the Uttarakhand Pollution Control Board to withdraw the office order dated 02.12.2022 issued vide Letter No. - UKPCB/HO/S-546/2022/1432 in pursuance to the directions in Para 16 and 17 of the order 07.07.2022 passed by this Hon'ble Court in Writ Petition (PIL) No. 93 of 2022, so far as they relate to the Applicant No. 2 - Shree Cement Limited, Applicant No. 3 - Ambuja Cement Limited and Applicant No. 4 - Ultratech Cement Limited and other members of the Cement Manufacturers' Association;
c. Direct that the directions in Para 16 and 17 issued in the order dated 7.7.2022 passed by this Hon'ble Court in Writ Petition (PIL) No. 93 of 2022 so far as they relate to the Applicant No. 2 - Shree Cement Limited, Applicant No. 3 - Ambuja Cement Limited and Applicant No. 4 - Ultratech Cement Limited and other members of the Applicant No.1 Association, be kept in abeyance till the final disposal of the present application;
d. During the pendency of the present application, direct that the office order dated
02.12.2022 issued vide Letter No. - UKPCB/HO/S- 546/2022/1432 in pursuance to the directions in Para 16 and 17 of the order dated 07.07.2022 passed by this Hon'ble Court in Writ Petition (PIL NO. 93 of 2022, so far as they relate to the 3 Applicant No. 2 - Shree Cement Limited, Applicant No. 3 - Ambuja Cement Limited and Applicant No. 4 - Ultratech Cement Limited and members of the Applicant No. 1 Association; be kept in abeyance till the final disposal of the present application;"
2. We have heard Dr. Abhishek Manu Singhavi, Mr. Rajiv Nayyar, apart from Mr. Arvind Vashistha, learned Senior Counsels on behalf of the applicants. We have also heard Mr. Dushyant Mainali, who appears for the petitioner, and Mr. Aditya Pratap Singh, who appears for the State Pollution Control Board.
3. We may observe that on 7.7.2022, when we passed the order, in paragraphs 16 and 17 we observed as follows:
"16. We also direct that those producers, importers and brand owners, who do not 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 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. Wide publicity shall be given to these directions by the State, so that all concerned have notice of it.
17. Since 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 4 obligation to prepare their plan for collection and to submit the same to the Uttarakhand State Pollution Control Board while applying for consent, the Uttarakhand State Pollution Control Board shall also require all producers, importers and brand owners to strictly comply with this requirement. The affidavit to be filed by the Uttarakhand State Pollution Control Board should also indicate as to how many producers, importers and brand owners have provided the said plans, and 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."
4. In our last order dated 22.12.2022, we have clarified the position in relation to our aforesaid order and observed as under:
"31. We clarify, that our direction contained in Paragraph No.16 of our order dated 07.07.2022 shall not apply to those PIBOs, who have obtained registration with the CPCB on account of the fact that they are operating in more than two States, and have submitted their EPRs with the CPCB."
5. The submission made by Counsels for the applicants is that they applied for the registration with the CPCB, under the erstwhile regime, physically. During pendency of the said registration process, the Ministry of Environment, Forest and Climate Change issued the 5 notification dated 16.2.2022, issuing the Plastic Waste Management (Amendment) Rules, 2022, which came into effect on the date of their publication in the official gazette. It 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." These guidelines, issued on 16.2.2022, are required to be complied with by those covered under the Extended Producer Responsibility obligations.
6. The submission of the applicants is that there is a challenge raised to the guidelines issued on 16.2.2022 before the Delhi High Court in Writ Petition No. 5643 of 2022. Our attention has been drawn to the orders passed by the Delhi High Court in those proceedings. It is argued that since the said challenge is pending, this Court should stay its hand and not proceed to enforce the compliance of the guidelines dated 16.2.2022 i.e. the Plastic Waste Management (Amendment) Rules, 2022.
7. We do not find any merit in the submission. Merely because a challenge, at the behest of the applicants, to the said guidelines/rules is pending before the Delhi High Court, there is no reason for this Court to stay its hand and not enforce the same as they are law framed to prevent plastic 6 waste pollution within the State, which is an ecologically sensitive State.
8. It is further argued by Dr. Singhavi that the online registration process under the guidelines/rules dated 16.2.2022 is impossible of compliance as information is required to be provided in the online registration process, which is not available with the members of the applicant association including applicant nos. 2 to 4. For instance, information is required with regard to pre-consumer plastic packaging waste, which is generated in the form of reject or discard at the stage of manufacturing of plastic packaging. The submission of Dr. Singhavi is that the members of applicant association are not engaged in the business of manufacturing of plastic packaging. They are receiving plastic packaging from manufacturers and, therefore, they are not in a position to provide any information with regard to plastic packaging waste, reject or discard, generated during manufacturing of plastic packaging.
9. The definition of Pre-consumer plastic packaging waste, as contained in EPR Guidelines, 2022, reads as under:
""Pre-consumer plastic packaging waste"
means plastic packaging waste generated in the form of reject or discard at the stage of manufacturing of plastic packaging and plastic packaging waste generated during the packaging of product including reject, discard, before the plastic 7 packaging reaches the end-use consumer of the product."
10. The aforesaid shows that the same is intended to cover the manufacturers of plastic packaging as well as users of plastic packaging i.e. manufacturers of products which are putting the plastic packaging to use. It is obvious that the obligation pointed out by Dr. Singhvi is on the manufacturers of plastic packaging, whereas, the manufacturers of other products, who are using such plastic packaging, are obliged to provide information and details with regard to plastic waste generated during the packaging of product including reject, discard and before the plastic packaging reaches the end-use consumer of the product.
11. The further submission of Dr. Singhavi is that the members of the applicant association are expected to provide state-wise information of pre and post-consumer plastic packaging waste since the members of the applicant association have operations in several States.
12. It goes without saying that any manufacturer/PIBO of the product, who is using plastic packaging, is expected to provide information with regard to the States where its products are being sold. We find it difficult to accept the submission that the manufacturers/PIBOs would not know as to in which States their product is being sold through the distributor and retail network.
8
13. The further submission of Dr. Singhavi is that the product once retailed may be transported to other States, where the manufacturers or distributor may not have a sales network.
14. It is obvious that it is not expected of the Producer, Importer and Brand Owners (PIBOs) to track as to where exactly the product once sold is unpackaged and used. However, the PIBOs should be in a position to supply information with regard to the places-States, where their products are being retailed through their distributor-cum- retail network.
15. We are also not willing to accept the submission of Dr. Singhavi that actual information regarding pre-consumer plastic packaging waste generated at the time of packaging cement for the last two years is not available. The PIBOs would maintain their records for a certain number of years under the taxation laws. We cannot accept that they are not aware about the plastic packaging materials produced, or sourced, for the purpose of packaging the products and selling them further through their sales network. The submission of Dr. Singhavi that the members of the applicant association should, therefore, be exempted from complying with the registration norms under 2022 guidelines/rules cannot be accepted. The applicants should, therefore, 9 proceed with to comply with the rules. Dr. Singhavi states that the same shall be complied with without prejudice to the rights of the members of applicant association.
16. The aforesaid being the position, in our view, no further clarification/modification is called for and the members of the applicant association should proceed to comply with the registration requirements under 2022 guidelines/rules.
17. The application stands disposed of accordingly. IA No. 21 of 2022 (Impleadment Application)
18. By this application, the applicants seek impleadment as party respondents in the present PIL.
19. We are inclined to implead the applicants, as their interests may be affected by our decision. The application is also not opposed by Mr. Mainali, learned Counsel appearing for the petitioners. The application is, accordingly, allowed. Applicants are impleaded as party respondents. They may file their response within four weeks.
20. List on 20.02.2023.
(VIPIN SANGHI, C.J.) (MANOJ KUMAR TIWARI, J.) Dated: 9th January, 2023 Pr