Uttarakhand High Court
SPA/466/2022 on 3 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
3RD JANUARY, 2023
SPECIAL APPEAL No. 466 OF 2022
Between:
Sukhivender Kaur Gill ...Appellant
and
State of Uttarakhand & others. ...Respondents
Counsel for the appellant : Mr. Girish Chandra Lakhchaura and Mr.
Aayush Gaur, learned counsel.
Counsel for the respondent Nos. 1 & 3 : Mr. B.S. Parihar, learned Standing
Counsel for the State of
Uttarakhand.
Counsel for the respondent No. 4 : Mr. Ravi Bisht, Advocate, holding brief of
Mr. Aditya Pratap Singh, learned counsel.
JUDGMENT :(per Sri Vipin Sanghi, C.J.) The present Special Appeal is directed against the order dated 09.12.2022 passed by the learned Single Judge in Writ Petition No. 3142 of 2022 (M/S) preferred by the appellant. The learned Single Judge has dismissed the said writ petition, wherein the appellant had challenged the order dated 26.03.2022 issued by the State Pollution Control Board, imposing a fine of Rs. 5,00,000/- on the appellant, and the recovery citation dated 09.11.2022 issued by respondent no. 5, to effect recovery of the said fine.
2. The case of the appellant was that he is running a 1 small scale industry, which is manufacturing non woven fabric (plastic carry bags). For the manufacture of the said product, the appellant purchases raw material in clippers form, and the thickness of the non woven fabric is 60 GSM. The respondent no. 4 conducted inspection of the premises of the appellant on 26.03.2022, and since the appellant was found to be conducting its business activities in contravention of the Uttarakhand Plastic and Other Non Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013, and the order dated 14.10.2021 issued thereunder, fine of Rs.5,00,000/- was imposed by the order dated 26.03.2022.
3. The appellant challenged the imposition of fine on the ground that the non woven fabric manufactured by the appellant being of 60 GSM, its manufacture was permissible under Section 4 (j) of the notification dated 12.08.2021 issued by the Ministry of Environment, Forest & Climate Change. The said notification brought into force the Plastic Waste Management (Amendment) Rules, 2021 w.e.f. the date of publication i.e. 12.08.2021. Post amendment, Rule 4 of Plastic Waste Management Rules, 2016, insofar as, it is relevant, reads as follows:
"(1) The manufacture, importer stocking, distribution, sale and use of carry bags, plastic sheets or like, or cover made of plastic sheet and multilayered packaging, shall be subject to the following conditions, namely:-2
..........
"(j) non-woven plastic carry bag shall not be less than 60 Gram Per Square Meter (GSM) with effect from the 30th September, 2021."
4. The case of the appellant was that since the Plastic Waste Management Rules, as amended in 2021, permitted the manufacture of non woven plastic carry bags - of not less than 60 GSM, the complete ban imposed by the State Act i.e. Uttarakhand Plastic and Other Non Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013, (The Act of 2013), and the order dated 14.10.2020 issued under Section 3 of the Act of 2013, is illegal. According to the appellant, there is repugnancy in the Environment (Protection) Act, and the Rules framed by the Central Government under that Act on the one hand, and the aforesaid Act of 2013 framed by the State Legislature, and the order dated 14.10.2020 issued thereunder, and, consequently, the Central Legislation and the Rules framed thereunder would prevail, over the State enactment, and the order issued thereunder, as aforesaid.
5. Learned Single Judge has, however, not found favour with the said submission and has dismissed the writ petition. Consequently, this Appeal has been preferred.
6. Section 3 of the Act of 2013 reads as under:-
"3. Restriction or prohibition on use of certain things manufactured from non- biodegradable material. - (1) The State Government may, by notification, 3 impose restriction or prohibition on the manufacture, sale, purchase, storage, distribution and use of any plastic or other non-biodegradable material within the State of Uttarakhand, which is contrary to the norms as the State Government may, by notification, specify.
(2) The State Government may, by notification, impose requirements on manufacturers, distributors and other persons, who produce or handle commodities, with respect to the type, size, labelling and composition of packaging or with respect to its use and disposal including standards or norms for material degradability and re-
cyclability."
7. The appellant does not dispute the fact that the Uttarakhand Plastic and Other Non Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013, and the Notification/ order dated 14.10.2020 issued under Section 3 thereof, prohibits 'sale, trade, manufacture, import, store, carry, transport, use, supply or distribute the following plastic/ thermocol/ Styrofoam items in the entire State of Uttarakhand.
(i) Polythene carry bags of any shape (with or without handle), thickness, size & colour; and non-woven poly propylene bags.
However, bio-compostable plastic bags and polybags more than 50 micron thickness used for handling, collection, transportation of the waste such as bio medical waste, municipal solid waste and hazardous waste will be excluded.
(ii) Single use disposable cutleries made up of thermocol (polystyrene), polyurethane, Styrofoam and the like; or plastic such as plate, tray, bowl, cup, glass, spoon, fork, straw, knives and stirrer of any size and shape and
(iii) Single use food packaging containers made up of recyclable plastics of any size, thickness and colour used to cover, carry, store food/ liquid items (hot & cold). Note: Compostable plastics shall confirm to the Indian Standard: IS 17088:2008. The manufacturers or seller of compostable plastic carry bags shall obtain a certificate from the Central Pollution Control Board before marketing or selling.
(b) No person shall knowingly or otherwise, litter any public place with any plastic item allowed under this order'.
(emphasis supplied) 4
8. The notification dated 14.10.2020 issued by the State Government narrates the reasons for the aforesaid ban as follows:-
"Whereas, plastics are non-biodegradable and cause threat to the ecological system as they reduce the fertility of soil and thereby hamper the growth of plants, choke drains and sewer resulting in overflowing of gutters and if swallowed by cattle and wild animals, they may cause death by obstructing their intestine;
And whereas, the color pigments present in the plastic contaminate food products wrapped in them and cause health hazards and some of it even carcinogenic;
And whereas, plastic products take hundreds of years for degradation, as they are not biodegradable, they also block the rainwater infiltration into the soil hindering recharge of ground water;
And whereas, the plastic bags when discarded can get filled with rainwater offering ideal breeding ground for vector borne diseases like malaria, dengue etc. and burning of plastics also releases carcinogenic and toxic substances like dioxins, furans and hydrogen cyanide, which pollute air as well as cause severe and chronic health problems;
And whereas, plastic waste and micro plastic cause danger to fresh and marine water biodiversity and also hamper ecosystem services due to spreading of such waste in and around ecosystems, on tourists places, heritage sites, eco-fragile areas like- Bugyals, high altitude areas and on agriculture and forest areas.
And whereas, Government of Uttarakhand has notified "The Uttarakhand Plastic and Other Non-Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013" herein after referred as "Said Act" and vide section 3(1) of the said Act the State Government may, by notification, impose restriction or prohibition on the manufacture, sale, purchase, storage, distribution, and use of any plastic or other non-biodegradable material within the State of Uttarakhand, which is contrary to the norms as the State Government may, by notification specify."
(emphasis supplied)
9. The submission of the learned counsel for the appellant is that the Environment (Protection) Act, 1986 is a Central enactment, which has been framed in the light of the decision taken at the United Nations Conference on the Human Environment held at Stockholm in June, 1972, in 5 which India participated, and it was resolved in the said conference to take appropriate steps for protection and improvement of human environment. According to the appellant, it is only on account of the said international treaty and convention, that the enactment, namely, The Environment (Protection) Act, 1986 came to be enacted by the Parliament. Learned counsel for the petitioner submits that Entry 13 of List I of the Seventh Schedule vests exclusive competence/authority on the Parliament to make laws in relation to "Participation in international conferences, associations and other bodies and implementing of decisions made thereat". According to the appellant, the Environment (Protection) Act, 1986 is relatable to Entry 13 of the List I Union List of the Seventh Schedule. Thus, according to the appellant, the State Legislature has no competence to frame the aforesaid enactment viz the Uttarakhand Plastic and Other Non Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013.
10. He further submits that there is repugnancy in the Plastic Waste Management Rules, 2016, as amended, and the Uttarakhand Plastic and Other Non Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013, and the order dated 14.10.2020 issued thereunder, since the Plastic Waste Management Rules, 2016, as amended, permit the 6 manufacture and sale of non woven plastic carry bags, which are not less than 60 GSM; whereas, the State Legislation and the order dated 14.10.2022 completely ban it.
11. We have considered the submission of learned counsel for the appellant and find no merit in the same. The submission of the appellant that the Environment (Protection) Act, 1986 is relatable to Entry 13 of List I Union List of the Seventh Schedule is completely misconceived.
12. The executive powers of the Union Government extend to the matters enumerated in the Union List. Therefore, by virtue of Entry 13 of List I-Union List, the Parliament can make laws in relation to participation in international conferences, associations and other bodies and to implement decisions made thereat. Similarly, the Union Government can exercise its executive power, which is relatable to Entry 13 of the List I of Union List. The subject matter of the Environment (Protection) Act, 1986 is - as it's title suggests, Human Environment. It lays down the norms for saving the Human Environment from pollution and, consequent degradation. The subject matter of the Environment (Protection) Act, 1986 is not related to participation in international conferences, associations and other bodies, and to implement decisions made thereat. The 7 Environment (Protection) Act does not seek to lay down any guideline or norm with regard to participation in International Conferences or Associations or other bodies. It does not define what is meant by these terms; it does not lay down any mandatory or directory procedure to be followed qua participation in International Conferences or Associations or other bodies, and how decisions taken thereat would be implemented; it does not say who will represent India in such conferences/ associations or meetings of other Bodies; it does not say how and when the decisions taken at such conferences/associations would be implemented. None of these aspects have been touched upon in the Environment (Protection) Act.
13. When the Parliament framed the Environment (Protection) Act, it merely recited the background in which the Environment (Protection) Act was enacted, in its preamble. From this, it does not follow that the Environment (Protection) Act is a legislation which is relatable to Entry 13 of List I Union List. The subject matter of Entry 13 of List I- Union List was not the subject on which Environment (Protection) Act was legislated. The Environment (Protection) Act, 1986 is an instance, where India participated in an International Conference, i.e. the UN conference on the Human Environment at Stockholm in June, 1972, which 8 resolved on the appropriate steps to be taken for protection and improvement of human environment, and, the decisions taken thereat were implemented by enactment of the Environment (Protection) Act. Another instance that comes to mind is The Rights of Persons with Disabilities Act, 2016. The preamble to this Act reads as follows :-
"An Act to give effect to the United Nations Convention on the Rights of Persons with Disabilities and for matters connected therewith or incidental thereto.
WHEREAS the United Nations General Assembly adopted its Convention on the Rights of Persons with Disabilities on the 13th day of December, 2006;
AND WHEREAS the aforesaid Convention lays down the following principles for empowerment of persons with disabilities,--
(a) respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons;
(b) non-discrimination;
(c) full and effective participation and inclusion in society;
(d) respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) equality of opportunity;
(f) accessibility;
(g) equality between men and women;
(h) respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities;
AND WHEREAS India is a signatory to the said Convention;
AND WHEREAS India ratified the said Convention on the 1st day of October, 2007;
AND WHEREAS it is considered necessary to implement the Convention aforesaid."
14. Similarly, it does not follow that The Rights of Persons with Disabilities Act, 2016 is an enactment covered by Entry 13 of List I-Union List, as it does not deal with the subject matter/ entry enumerated at Entry 13 of List I-Union List.
9
15. The subject of environment does not specifically find mention in any of the Entries of List I-Union List, List II- State List, or List III-Concurrent List of the Seventh Schedule. That being the position, the subject of environment would fall within the competence of the Parliament to legislate upon, by virtue of Entry 97 of List I-Union List, which is a residuary Entry, and reads "any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists". Thus, on environment related matters, which are enumerated in List II, the State Legislature would have exclusive competence to legislate, and on environment related matters enumerated in List III, the power to legislate is concurrent between the Parliament, and the State Legislature. The pith and substance of the competing Legislations would have to be examined, to find out whether they fall within the legislative competence of the legislature enacting them. Only in case of conflict/repugnancy, the Parliamentary legislation will prevail. It is a well settled principle of Constitutional interpretation that repugnancy/conflict should be avoided, as far as possible, since the legislative entries in the three lists of the 7th Schedule should be given widest amplitude in the matter of interpretation. We may refer to the following judgments of the Supreme Court on this aspect :
10
16. In Calcutta Gas Co. (Proprietary) Ltd. v. State of W.B., 1962 Supp (3) SCR 1, the Supreme Court held as follows :-
"The entries in the three Lists are only legislative heads or fields of legislation : they demarcate the area over which the appropriate legislatures can operate. It is also well settled that widest amplitude should be given to the language of the entries. But some of the entries in the different Lists or in the same List may overlap and sometimes may also appear to be in direct conflict with each other. It is then the duty of this Court to reconcile the entries and bring about harmony between them. When the question arose about reconciling Entry 45 of List I, duties of excise, and Entry 18 of List II, taxes on the sale of goods, of the Government of India Act, 1935, Gwyer, C.J., in In re Central Provinces and Berar Act 14 of 1938 [(1939) FCR 18, 42, 44] observed:
"A grant of the power in general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implication of the context, and even by considerations arising out of what appears to be the general scheme of the Act."
The learned Chief Justice proceeded to state:
"... an endeavour must be made to solve it, as the Judicial Committee have said, by having recourse to the context and scheme of the Act, and a reconciliation at empted between two apparently conflicting jurisdictions by reading the two entries together and by interpreting, and, where necessary, modifying the language of the one by that of the other. If indeed a reconciliation should prove impossible, then, and only then, will the non obstante clause operate and the federal power prevail."
The Federal Court in that case held that the entry "taxes on the sale of goods" was not covered by the entry "duties of excise" and in coming to that conclusion, the learned Chief Justice observed:
"Here are two separate enactments, each in one aspect conferring the power to impose a tax upon goods; and it would accord with sound principles of construction to take the more general power, that which extends to the whole of India, as subject to an exception created by the particular power, that which extends to the province only. It is not perhaps strictly accurate to speak of the provincial power as being excepted out of the federal power, for the two are independent of one another and exist side by side. But the underlying principle in the two cases must be the same, that a general power ought not to be so construed as to make a nullity of a particular power conferred by the same Act and operating in the same field, when by reading the former in a more restricted sense effect can be given to the latter in its ordinary and natural meaning."
(emphasis supplied) 11
17. In Prem Chand Jain v. R.K. Chhabra, (1984) 2 SCC 302, the Supreme Court reiterated the same principle of interpretation, as follows :-
"8. ....The legal position is well-settled that the entries incorporated in the lists covered by Schedule VII are not powers of legislation but "fields" of legislation. (Harakchand v. Union of India [(1969) 2 SCC 166, 174 : AIR 1970 SC 1453 : (1970) 1 SCR 479, 489] .) In State of Bihar v. Kameshwar [(1952) 1 SCC 528 : AIR 1952 SC 252 : 1952 SCR 889] this Court has indicated that such entries are mere legislative heads and are of an enabling character. This Court has clearly ruled that the language of the entries should be given the widest scope or amplitude. Navinchandra v. CIT [AIR 1955 SC 58 : (1955) 1 SCR 829, 836] . Each general word has been asked to be extended to all ancillary or subsidiary matters which can fairly and reasonably be comprehended. (See State of Madras v. Cannon Dunkerley [AIR 1958 SC 560 : 1959 SCR 379, 391] ). It has also been held by this Court in Check Post Officer v. K.P. Abdulla Bros. [(1970) 2 SCC 355 : AIR 1971 SC 792 : (1971) 2 SCR 817] that an entry confers power upon the Legislature to legislate for matters ancillary or incidental, including provision for avoiding the law. As long as the legislation is within the permissible field in pith and substance, objection would not be entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent legislation is made it covers an aspect beyond it. In a series of decisions this Court has opined that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the Legislature enacting it, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another Legislature. (See State of Karnataka v. Ranganatha Reddy [(1977) 4 SCC 471, 491 :
AIR 1978 SC 215 : (1978) 1 SCR 641, 661] ; K.S.E. Board v. Indian Aluminium Co. [(1976) 1 SCC 466 : AIR 1976 SC 1031 : (1976) 1 SCR 552] ; Subrahmanyan Chettiar v. Muttuswami [AIR 1941 FC 47 : 192 1C 225 : 1940 FCR 188] , Prafulla Kumar Mukherjee v. Bank of Commerce [AIR 1947 PC 60 : 1947 FCR 28 : 49 Bom LR 568] ; Ganga Sugar Corpn. v. State of U.P. [(1980) 1 SCC 223, 232 : (1980) 1 SCR 769, 782])."
(emphasis supplied)
18. The recent judgment of the Supreme Court in Ram 12 Krishan Grover v. Union of India, (2020) 12 SCC 506, reiterates the same principles in the following words :-
"24. The entries in the three Lists are not mutually exclusive. Further, the entries are fields of legislation that demarcate the area and heads of legislation. Accordingly, they should receive the widest construction unless their rigour and import need to be castrated by competing entries and other parts of the Constitution. Interpretation of each entry has to be fair and liberal so as to cover all incidental and subsidiary matters which can reasonably be said to have been comprehended in it. The entries should not be interpreted in a narrow and pedantic sense. "Pith and substance" doctrine states that if the legislation is covered by an entry, that is, it is within the permitted jurisdiction of the legislature, any incidental encroachment in the rival field has to be disregarded. Only when wide construction of an entry leads to heads-on- clash with another entry in the same or different List, the principle of harmonious construction applies to reconcile the conflict and to give effect to each of them."
(emphasis supplied)
19. A perusal of List II-State List, and List III- Concurrent List, would show, that several aspects of environment are covered both in List II-State List and List III- Concurrent List. Entry 5 in List II-State List reads "local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration". The aforesaid Entry shows that the municipal governance, through a local government, falls within the exclusive domain of the State Legislature to legislate upon. Amongst others, the powers of municipal corporations, improvement trusts, districts boards, and other 13 local authorities for the purpose of local self-government or village administration, can be legislated upon by the State Legislature. With Entry 5, we may also take note of Entry 6 of List II, which reads "public health and sanitation; hospitals and dispensaries".
20. Article 243 W of the Constitution is also relevant, and reads as follows:
"243W. Powers, authority and responsibilities of Municipalities, etc.- Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow-
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to -
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule."
(emphasis supplied)
21. The matters enlisted in the Twelfth Schedule to the Constitution, inter alia, include :-
"6. Public health, sanitation conservancy and solid waste management."
"8. Urban forestry, protection of the environment and promotion of ecological aspects."14
22. Thus, the State Legislature has the legislative competence to endow on municipalities the responsibilities to perform the functions relating to the aforesaid aspects, subject to the other provisions of the Constitution.
23. Municipal governance by municipal corporations, improvement trusts, districts boards, and other local authorities, necessarily entails protection of public health and upkeep of sanitation in the area of governance by the local authorities concerned. The effect of the human environment on public health, cannot be overemphasized. Sanitation has a direct bearing on the human environment. Thus, aspects concerning human environment, which impinge upon public health, and have a direct connection with sanitation, fall within the realm of the State Legislature to legislate upon. Thus, in our view, the State Legislature is empowered to frame legislation on aspects of environment protection, which have a bearing on municipal governance; public health and sanitation. The Act of 2013, in pith and substance, is a legislation covered, inter alia, by Entries 5 and 6 of List II- State List of the 7th Schedule.
24. Entry 17 of List II-State List reads "water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the 15 provisions of entry 56 of List I". The Uttarakhand Plastic and Other Non-Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013 is an enactment framed to deal with, inter alia, the use and disposal of plastic and other non- biodegradable garbage in the State of Uttarakhand. The plastic and other non-biodegradable garbage is known to adversely impact water supplies, irrigation through canals, and drainage, as such garbage chokes the free flow of water. It is for this reason that Section 4 of the Uttarakhand Plastic and Other Non-Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013 prohibits the throwing of non- biodegradable garbage in pubic drains, sewers and water bodies.
25. Plastic and other non-biodegradable waste is also known to render the soil infertile, and the growth of vegetation in land polluted with plastic and other non- biodegradable waste is known to suffer adversely. Entry 18 of List II-State List reads "land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization". Under the aforesaid Entry, it is the State Legislature, which is empowered to frame legislation, inter alia, on aspects of "land improvement". It is in the aforesaid 16 light that Sections 4(2), 6, 7 and 8 of the Uttarakhand Plastic and Other Non-Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013 appear to have been framed. Thus, the Act of 2013, in pith and substance is also an enactment covered by the fields of Legislation enumerated in Entries 17 and 18 of List II-State List of the 7th Schedule.
26. We may also look at Entries 17A and 17B of List III-Concurrent List of the Seventh Schedule. The subject matters thereof are "forests" and "protection of wild animals and birds". Plastic and other non-biodegradable waste are known to degrade forests, and also harm wild animals and birds, who feed on them, or get entangled in such plastic or non-biodegradable waste, and often suffer mortality. Therefore, the source of authority, for enactment of the Uttarakhand Plastic and Other Non-Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013, can also be traced to Entries 17A and 17B of List III-Concurrent List.
27. All the aforesaid Entries of List II-State List and List III-Concurrent List form the basis of the order/ notification dated 04.10.2021 issued under Section 3 of the Act of 2013.
28. We are, therefore, of the view that the State Legislature had the legislative competence to enact the 17 Uttarakhand Plastic and Other Non-Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013, and merely because the Environment (Protection) Act, 1986 has been enacted by the Parliament, that does not take away the legislative competence of the State Legislature to enact the Uttarakhand Plastic and Other Non-Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013.
29. In Ram Krishan Grover (supra), the Supreme Court has also held as follows :-
"25. Repugnancy arises between a Central and a State Act when there is a direct and irreconcilable conflict between the two enactments. It is when there is an irreconcilable conflict between the two legislations that the Central legislation prevails by virtue of Article 254 of the Constitution. Such repugnancy or inconsistency is not to be readily inferred as the entries in the three Lists permit incidental encroachment. Consequently, every attempt must be made to placate the conflict and only when and in case of oppugnant clash, the Court should proceed to strike down the legislation as trespassing beyond its legitimate and legal confines.
26. In Vijay Kumar Sharma v. State of Karnataka [Vijay Kumar Sharma v. State of Karnataka, (1990) 2 SCC 562] , this Court referring to the "pith and substance" doctrine had held that a provision in a particular legislation in order to give effect to its dominant purpose may incidentally encroach on the same subject-matter as covered by the provision of another legislation. Such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). Both the legislations must be substantially on the same subject-matter for repugnancy to arise and to attract Article 254. If the subject-matters covered by the legislations are different, then merely because the two legislations refer to some allied or cognate subjects, they do not cover the same field."
(emphasis supplied) 18
30. Insofar as the submission in relation to repugnancy is concerned, we do not find any repugnancy in the Plastic Waste Management Rules, 2016, as amended, on the one hand, and the provisions of the Uttarakhand Plastic and Other Non Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013, and the order issued thereunder. Plastic waste is a hazardous substance. It is for this reason that the Plastic Waste Management Rules, 2016 have been framed by the Central Government under Sections 3, 6 & 25 of the Environment (Protection) Act, 1986. Rule 4 lays down the conditions for manufacture, importer stocking, distribution, sale and use of carry bags, plastic sheets or the like, or covers made of plastic sheet, and multilayered packaging. The Central Government has provided in Rule 4 (1) (j) that non-woven plastic carry bag shall not be less than 60 Gram Per Square Meter (GSM) with effect from the 30th September, 2021. These Rules do not create a right in any person to manufacture or trade in plastic bags, sheets etc. It creates a benchmark by stipulating that non-woven plastic carry bags less than 60 GSM shall, inter alia, be not manufactured. Only because the State of Uttarakhand has passed a law completely banning the manufacture, sale, purchase, storage, distribution and use of any plastic or other non-biodegradable material within the State of Uttarakhand, that does not create any repugnancy with the Plastic Waste Management Rules, 19 2016, as amended. Since the State of Uttarakhand is an ecologically sensitive State, it is open to the State to lay down norms, which are stricter, and lay down standards higher than those laid down by the Central Government for application in the State, to prevent and manage pollution caused by plastic waste.
31. The Plastic Waste Management Rules, 2016, framed by the Central Government under the Environment (Protection) Act, can be harmonized with the Uttarakhand Plastic and Other Non Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013, and the order dated 14.10.2020 issued thereunder. The Plastic Waste Management Rules, 2016, when read with the Uttarakhand Plastic and Other Non Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013, and the order dated 14.10.2020 issued thereunder only mean, that in areas where either there is no ban, or where higher standards have not been laid down in relation to manufacture, sale and use of plastic bags, sheets etc., the minimum standards laid down under the Plastic Waste Management Rules, 2016, as amended, would be applicable. However, in areas and jurisdictions where higher standards have been laid down, or where there is a complete ban, resort cannot be had to Plastic Waste Management Rules, 2016, as amended, to claim a right to violate the higher standards or 20 ban imposed by the Competent Legislature, by referring to the minimum standards laid down in the Plastic Waste Management Rules, 2016, as amended.
32. We are, therefore, of the view that there is no merit in the present Appeal and the same is accordingly dismissed.
___________________ VIPIN SANGHI, C. J.
______________ MANOJ KUMAR TIWARI, J.
Dt: 03.01.2023 A.J. 21