Bombay High Court
A.K. Bag House, Nagpur Through Its ... vs The State Of Maharashtra, Environment ... on 2 November, 2018
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
Order 0211wp6955.18
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6955/2018.
A.K. Bag House, Nagpur and others.
-VERSUS-
The State of Maharashtra and others.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
CORAM : B.P. DHARMADHIKARI
AND S.M. MODAK, JJ.
Closed for Orders on 01.11.2018.
Orders pronounced on 02.11.2018.
Heard Shri M.G. Bhangde, learned Senior Counsel with Shri R.M. Bhangde, learned Counsel for the petitioners, Ms. N.P. Mehta, learned A.G.P. for respondent no.1, Shri S. Sanyal, learned Counsel for respondent no.2, Shri J.B. Kasat, learned Counsel for respondent no.3 and Shri U.M. Aurangabadkar, learned ASGI for respondent no.4.
2. By this petition, filed by 11 Plastic Bag Traders on 15.10.2018, prayer is to quash and set aside notification dated 23.03.2018, which bans manufacture, transport, store, sale, import etc. of non-woven polypropylene bags (hereinafter referred to as ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 01:50:15 ::: Order 0211wp6955.18 2 "Carry Bags" for short). Further contention is, to declare that such carry bags with thickness of 300 to 1200 microns are not single use disposable product, and hence, not covered by notification dated 23.03.2018.
3. As petitioners through learned Senior Counsel pressed for grant of interim orders staying that notification, matter has been heard by this Court at considerable length.
4. Notice has been issued in the present matter on 16.10.2018 and it was made returnable on 23.10.2018. Matter was then adjourned to 24.10.2018. On that day, parties have advanced their arguments. Learned A.G.P. appearing for State was seeking time of two or three days to file reply, however, due to urgency pressed into service, as consideration of interim prayer became essential, the Court rejected adjournment to State Government. Then matter was closed for passing orders on interim prayer.
5. On account of one of the queries made during hearing, after two days, learned Senior Counsel for petitioners sought leave to further assist the Court. Accordingly further arguments have been advanced on 01.11.2018.
6. After hearing respective counsel, we find that the challenge to very same notification formed subject matter of various ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 01:50:15 ::: Order 0211wp6955.18 3 Writ Petitions including Writ Petition Nos. 4033 and 4391 of 2018 at Principal Seat. There various Associations of Plastic Manufacturers, Pet Container Manufacturers and Thermacol Fabricator and Decoration Association are petitioners. Division Bench at Bombay has admitted that Writ Petition for final hearing and directed it to be placed on 08.06.2018. However, it refused to stay the notification dated 23.03.2018. The said order considers rival contentions and prima facie evaluation thereof runs into almost 32 pages. In paragraph no.38, the Division Bench has observed as under :
"38. Hence, we pass the following order :
(i) If the petitioners or any other citizens or the stakeholders make representations seeking modification of the impugned notification, the State shall dispose of the said representation at the earliest. If the representations are made by the petitioners within one week from today, we direct the State Government to consider the said representations after holding meetings with the representatives of the petitioners and take a decision thereon as expeditiously as possible and in any event, by 5th May, 2018 and communicate the said decision to the petitioners.
(ii) As we are directing the consideration of the representations by the State Government, though for the reasons recorded earlier, we are not inclined to grant interim relief as prayed for, we ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 01:50:15 ::: Order 0211wp6955.18 4 direct that for a period of three months from 223 rd March 2018, no coercive action shall be taken in terms of Section 9 of the said Act of 2006 against individual citizens limited only to the use of restricted/regulated/prohibited items which are covered by the impugned notification dated 23 rd March, 2018 as amended by the notification dated 11th April, 2018.
(iii) Subject to above directions, we reject the prayers made in these petitions for grant of interim relief;
(iv) As this order is dictated in the open Court, even if a copy of the order is not available, the State Government will be bound by what is directed above. We direct the State Government to act upon the operative part of this order which will be released immediately.
(v) Considering the importance of issue, we direct that the petitions shall be listed on 8 th June 2018 for fixing a peremptory date for final hearing."
7. Petitioners, who were aware of these orders and limited interim protection extended at the Principal seat, have thereafter filed the present petition at Nagpur for similar reliefs. Thus, after coming into force of ban, present petition has been filed and is being pressed into service for grant of interim relief.
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8. The Division Bench at Bombay has also permitted petitioners, other citizens or stakeholders to make representations seeking modification in notification dated 23.03.2018, and State Government was directed to dispose of those representations at the earliest. The said representations are decided on 06.06.2018 by a Specially Empowered Committee. Grievance in relation to non-woven plastic bags finds consideration at item no.9 in it.
9. Thus, we find that petitioners who are aware of the ban, Court orders, decision on representation, have approached this Court belatedly and they seek an order which infact has final or irreversible effect, as an interim order.
10. As we have heard the arguments at some length in absence of any reply affidavit from respondent no.1 or respondent no.4, we briefly reproduce the same below.
11. Petitioners contend that the provisions of Central enactment namely Environment Protection Act, 1986 and the provisions of Plastic Waste Management Rules, 2016 framed thereunder permit manufacture of the carry bags and their quality. Rule 4[c] is relied upon to urge that ban is only on manufacturing carry bags which are below 30 microns in thickness. Arrangement for plastic waste management in Rule 5[b] and its recycling is also relied ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 01:50:15 ::: Order 0211wp6955.18 6 upon for this purpose. It is contended that this enactment and Rules are under Article 253 of the Constitution of India and hence, the State Government / State Legislature cannot take any step inconsistent with it.
12. Our attention is invited to Maharashtra Non-biodegradable Garbage (Control) Act, 2006 (hereinafter referred to as "the Garbage Act" for short), enacted by the State Legislature and Section 4[1], to submit that State Government has been given powers to impose restriction or prohibition on use of non biodegradable material or any other material harmful to environment within the State, if it is contrary to the norms, as State Government may by notification in official gazette prescribe. Section 18[3][i] permits State Government to consider thickness of such carry bags and make a Rule on it. Learned Senior Counsel submits that impugned notification dated 23.03.2018, is issued in exercise of this Rule making power and it finds plastic bags to mean all type of plastic bags and includes even non-woven polypropylene bags. Vide Section 2 (9), it imposes ban on such plastic bags without reference to thickness. He submits that as per Section 3, which points out regulated activities, the ban is on single use disposal plastic bags. Bags manufactured by petitioners are not single use disposal bags, and can be conveniently used again and again for period of one year. He also produced one such bag before ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 01:50:15 ::: Order 0211wp6955.18 7 us to demonstrate how sturdy it is.
13. Contention is when Central enactment deals with environment, permits manufacturer of such bags with thickness of 50 micron or above, State Government cannot in exercise of Rule making power contained in State Legislature to issue such notification. It is pointed out that in Chattisgarh State, Harayana State and Gujarat State, bags manufactured by petitioners are still permitted and are not banned. Contention is, this results in artificial discrimination.
14. Our attention is invited to notification dated 11.04.2018 issued by the State Government under the Garbage Act, to submit that it permits use of packaging material, if it is more than 50 microns in thickness, hence, not permitting that product above 50 microns as carry bag or plastic bag or as non-woven polypropylene bags results in hostile discrimination. Classification has no tangible and reasonable differentia with the object to be achieved and therefore, violates Article 14 of the Constitution of India.
15. To buttress his contention, he has invited our attention to judgment of Hon'ble Supreme Court reported at (1995) 4 SCC 104 (State of T.N. and another .vrs. Adhiyaman Education and Research Institute and others), and contended that the test of repugnancy as upheld by the Hon'ble Supreme Court needs to be ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 01:50:15 ::: Order 0211wp6955.18 8 applied in present matter.
16. Ms. Mehta, learned A.G.P. appearing for State has invited our attention to the judgment delivered at Bombay on 12-13 th April, 2018. She submits that there identical arguments have been advanced along with submission that field is already occupied by Central enactment and Rules. She therefore, states that in present matter at this stage no intervention by this Court is warranted. She has also drawn support from a judgment of National Green Tribunal in Application No. 26/2013 (Goodwill Plastic Industries and another .vrs. Union Territory of Chandigarh and others), to support her contentions. She claims that State Legislature and Government has power to enact law and take a policy decision. That decision has been taken without any oblique motive in the interest of general public. During arguments, she also sought time of 2/3 days to file reply affidavit again.
17. Shri Sanyal, learned counsel appearing for respondent no.2 points out that the Garbage Act, framed by the State Government is specifically on the non biodegradable garbage. Notification dated 23.03.2018, shows satisfaction about nuisance caused by non biodegradable garbage and also takes cognizance of thickness of plastic bags and while imposing ban, deliberately does not specify thickness as relevant norm. Intention is to eliminate non ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 01:50:15 ::: Order 0211wp6955.18 9 biodegradable plastic.
18. He has taken us through relevant provisions and also to somewhat identical challenge looked into by the Division Bench at Nagpur in judgment reported at 2007 (4) ALL MR 642 (Godavari Polymer and others .vrs. Union of India and others).
19. Learned Senior Counsel in reply arguments has attempted to show how Division Bench while deciding case of Godavari Polymers, did not receive proper assistance. Fact that subject of enactment is not in a common list, cannot always be decisive. He has invited our attention to entry no.13 in List 1 of Schedule-7 and submitted that the 1986 Act is under this entry. He further submits that this enactment is on account of International Obligations cast on India, and therefore, and hence, Article 253 is squarely attracted. He relies upon judgments reported at (1997) 2 SCC 87 (S. Jagannath .vrs. Union of India and others).
20. While commenting upon the arguments advanced on the strength of judgment of National Green Tribunal [supra], he contends that said judgment does not look into List-1 entry or Article 253 of the Constitution of India. It considers only Central enactment and Rules framed thereunder. According to him, express language of Section 5 of the Environment Protection Act sufficiently clinched the ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 01:50:15 ::: Order 0211wp6955.18 10 controversy, as power to give directions could have been exercised by the Central Government only subject to provisions of 1986 Act. He further points out that attention of National Green Tribunal was not invited to 2011 Rules, which were on same lines as of 2016 Rules, framed thereunder. Those Rules prescribed thickness of 50 microns as a norm.
21. In later phase of argument, on 01.11.2018, he submitted that question - Whether State Legislature can, in present matter prescribe more rigorous standards, than one laid down by the Central Legislation, need not detain the Court since here State already had/has a standard of 50 microns and if this standard is adhered to in impugned notification, petitioners may not have any grievance. He invited our attention to judgment reported at 2016 (6) Mh.L.J. 833 (Vidarbha Youth Welfare Society, Amravati and another .vrs. State of Maharashtra and others), and attempted to distinguish it, as one of us (B.P. Dharmadhikari, J) is party to it. He also points out that overriding effect of Article 253 by relying upon observations in paragraph no.459 in judgment reported at Hon'ble Supreme Court reported at (2017) 10 SCC 1 (Justice K.S. Puttaswamy and another .vrs. Union of India and others).
22. Learned A.G.P. has not raised any new contentions on 01.11.2018.
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23. Shri Sanyal, learned counsel on behalf of Pollution Control Board has submitted that the overriding effect in Article 253 to protect rights of Trans-genders and to evaluate stringent steps taken by the State Government to safeguard environment must be cautiously examined. He pressed into service judgments reported at Hon'ble Supreme Court reported at (2013) 8 SCC 418 (K. Guruprasad Rao .vrs. State of Karnataka and others), (2017) 9 SCC 499 (Common Cause .vrs. Union of India and others ), and (2004) 9 SCC 362 (N.D. Jayal and another .vrs. Union of India and others), for this purpose.
24. After the parties concluded their arguments, and after the matter was closed for orders on 24.10.2018, the State Government got time of about one week. We therefore, inquired from the learned A.G.P. why a proper reply - affidavit was not filed. Learned A.G.P. fairly submitted that though she had contacted the Under Secretary, but, could not receive any response.
25. Petitioners do not challenge exercise of powers by State Government, as with any ulterior motive. Impugned notification itself shows that there steps have been taken in public interest to safeguard environment. Central enactment in the shape of Environment Protection Act, 1986 or Rules framed thereunder show standards ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 01:50:15 ::: Order 0211wp6955.18 12 applied by the Central Government. Impugned notification however recognizes the garbage problems faced by the administration due to non biodegradable plastic bags. It is not the case of petitioners that their bags are not non biodegradable. Their effort is to demonstrate that as per the Central Rules, particularly Rule 5, bags can be recycled and used in road construction activity.
26. When the ban has already come into force and is in public interest, without recording any finding on the rival contentions, we feel it unjust to pass the stay order thereby stopping further operation of the notification dated 23.03.2018. That will tantamount to granting final relief at interlocutory stage. We have already noted supra that petitioners are aware of notification, orders passed at Bombay and still have preferred to approach this Court just before commencement of Diwali vacations and made efforts to obtain interim orders.
27. Questions like - Competency of State Government to frame 2006 Act; Whether this Act on "garbage" deals with non biodegradable garbage, needs to be examined by adopting a perspective, relevant qua 1986 Central enactment or Rules framed thereunder, are the cardinal questions. We find it unsafe to take any view on it without proper affidavit from respondent no.1 State Government and respondent no.4 Union of India. ::: Uploaded on - 03/11/2018 ::: Downloaded on - 04/11/2018 01:50:15 :::
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28. We however, place on record our displeasure on failure on the part of respondent no.1 State Government to file a responsible affidavit in the matter. It may have already filed such affidavit before Division Bench at Principal Seat in Writ Petition mentioned supra, appears that it was not acting bonafidely, when request of time of 2 or 3 days was made on 24.10.2018.
29. We therefore, reject the interim prayer and list Writ Petition for admission on 26.11.2018.
JUDGE JUDGE
Rgd.
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