Delhi High Court - Orders
Cement Manufacturers Association & Ors vs Union Of India & Anr on 25 May, 2023
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
$~22.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5643/2022
CEMENT MANUFACTURERS ASSOCIATION & ORS.
..... Petitioner
Through: Mr. P. Chidambaram & Mr. Darpan
Wadhwa, Sr. Advocates with Mr.Ajay
Bhargava, Ms. Vanita Bhargava, Mr.
Rahul Sahay, Mr. Arvind Ray, Ms.
Prerna Singh and Mr. Shantanu
Chaturvedi, Advocates.
versus
UNION OF INDIA & ANR. ..... Respondent
Through: Mr. Sanjay Jain, ASG with Ms. Nidhi
Raman, CGSC, Mr. Zubin Singh,
Advocates, Mr. Amit Love, Scientist
and Ms. Sadhna Mishra, Asso. Legal
for R-1.
Mr. Sanjay Jain, ASG, Mr. Balendu
Shekhar, Adv. with Mr. Krishna
Chaitanya, Advocate for Respondent
No.2.
Mr. Kamal Bandhu, ALO, CPLB.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 25.05.2023 W.P.(C) 5643/2022 & C.M. APPL. 54791/2022 Admit.
List in due course.
The matter be treated as part-heard.
W.P.(C) 5643/2022 Page 1 of 6This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 05:10:52 C.M. APPL. 52690/2022
1. W.P.(C) 5643/2022 has been filed by the Petitioners challenging the Guidelines on Extended Producer Responsibility (hereinafter referred to as "the EPR Guidelines") for Plastic Packaging inserted in Schedule II of the Plastic Waste Management (Amendment) Rules, 2022 issued by the Ministry of Environment, Forest and Climate Change vide notification dated 16.02.2022, as manifestly arbitrary and violative of Article 14 and Article 19(1) (g) of the Constitution of India qua the cement industry. The Petitioners have also sought for an appropriate writ/order/direction for quashing the Standard Operating Procedure (hereinafter referred to as "the SOP") for Registration of Producer, Importer and Brand Owners (hereinafter referred to as "the PIBOs") through Plastic EPR Portal as per Plastic Waste Management Rules, 2016 (hereinafter referred to as "the PWM Rules 2016") issued by the Central Polution Control Board (hereafter, "CPCB") on 15.03.2022.
2. Petitioner No.1 is Cement Manufacturer's Association.
3. It is the primary contention of the Petitioner that Para 14 of the impugned EPR Guidelines lay down the primary responsibility for collection and disposal of plastic waste has been put on the PIBOs whereas, to the contrary, Rule 6 & 7 of the PWM Rules 2016 cast the responsibility for development and setting up of infrastructure for segregation, collection, storage, transportation, processing and disposal of the plastic waste on the Urban Local Bodies and Municipal Corporations. It is the primary submission of the Petitioners that it will be impossible for the cement manufacturers to segregate the used multi-layered sachets or pouches or W.P.(C) 5643/2022 Page 2 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 05:10:52 packaging and, therefore, the said Rule is manifestly arbitrary. It is further contended by the Petitioners that it is not possible for PIBOs to fulfil the responsibility cast upon them under Clause 8.3 of the EPR guidelines which states that PIBOs can meet their Extended Producer Responsibility obligations under a category by purchasing surplus EPR certificates from other PIBOs of the same category since the said certificates are not available on the EPR Portal. The thrust of the Petitioners' argument, therefore, is that since it is impossible for the producer to initially segregate plastic waste and these certificates are also not available, the obligation which has been cast upon them is impossible to perform and, therefore, the EPR Guidelines should be stayed.
4. Per contra, Mr. Sanjay Jain, learned ASG appearing for Union of India, contends that the EPR Guidelines are being challenged only by cement manufacturers and not any other industry. It is further stated that there are about 41 Members in the Petitioner No.1/Association and only 24 Members have registered themselves as PIBOs on the Centralized EPR portal for plastic packaging. He further contends that the obligation on the PIBOs as defined in Clause 4 of the EPR Guidelines for plastic packaging does not mandate any task to be performed by the PIBOs. He states that the mandate of the EPR Guidelines is not that PIBOs must physically collect and segregate the plastic waste nor do the rules require them to collect the packaging waste in which the products of the PIBOs are packed. He submits that there is provision of purchase of certificates that exempt physical collection and segregation and contrary to the Petitioners' submissions, adequate certificates are available on the EPR portal and purchase of those certificates by PIBOs is sufficient to meet the extant obligations. Mr. Jain W.P.(C) 5643/2022 Page 3 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 05:10:53 submits that the obligation of 24 members is only 82,600 tonnes whereas certificates worth 1,30,805 tonnes are available on the EPR Portal. He has handed-over a snapshot in the Court showing the availability of certificates on the Portal. It is stated that in view of the fact that a variety of options are available to the PIBOs to meet their EPR obligations, the same are not erroneous and not impossible to be performed and, therefore, the Guidelines need not be stayed. It is imperative to advert to the note submitted by the learned ASG, which reads as under:
"1.24 out of 41 CMA members are already registered as PIBOS on the Centralized EPR portal for Plastic Packaging. [eprplastic.cpcb.gov.in]
2. 25 out of 41 total CMA members are already registered PWPs on the Centralized EPR portal for Plastic Packaging with a processing capacity of 101 lakh tonnes per annum, as on 25.05.2023.
3. EPR target of the said registered 24 CMA members for the year 2022-2023 is 82,660 tonnes [Category II Plastic Packaging]
4. EPR certificates for Category II Plastic Packaging available on EPR portal as on 25.05.2023 is 1,30,805 tonnes. In addition, the Petitioner Association can themselves generate the EPR certificates being PWPs.
5. The registered 24 CMA members are required to fulfill the EPR target of 82,600 tonnes by 31.10.2023 as per 6th Amendment to Plastic Waste Management Rules, 2016 vide Notification dated 27.04.2023 issued by MOEFCC.
6. The presently 17 unregistered entities will have their target fixed based on the average of 2021-22 and W.P.(C) 5643/2022 Page 4 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 05:10:53 2022-23 which they can meet by 30.06.2024.
7. Rule 9 of PWM Rules, 2016 has been replaced by the EPR guidelines dated 06.07.2022 specified in Schedule II by Clause 4 which categorically states that PIBOS shall fulfill EPR obligation as per new the guidelines specified in Schedule II.
8. Even as on today. PWPS of Cement Manufacturers are generating Category II EPR certificates also, thus, enabling them to utilize the same to meet their EPR obligations.
9. But for the present challenge, all members of this Association would have been before NGT and be paying Polluter Pays Principle based compensation, just like other polluters are paying, which none of them had paid since 2016.
10. The averment in the Petition to the effect that Cement Industry PWPs cannot generate EPR certificates for Category 11 plastic waste is wrong because as per Clause 13.4 of the EPR Guidelines under challenge, it is clearly provided that "State Pollution Control Board or Pollution Control Committee shall carry out a compositional survey of collected mixed municipal waste to determine the share of plastic waste as well as different categories of plastic packaging material on a half-yearly basis". It essentially means that even if one burns mixed plastic waste, based on the component of Category I waste, EPR certificates pertaining to Category II plastic waste can be generated. Dalmia Cements and Chettinad Cements are already generating EPR certificates pertaining to Category II Plastic Packaging Waste."
5. The 17 manufacturers who are not registered are directed to register W.P.(C) 5643/2022 Page 5 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 05:10:53 themselves forthwith and perform their obligations as is required under the notification.
6. It is well settled that the Courts lean in favour of presumption of constitutionality of legislation and unless it is shown that the legislation is manifestly arbitrary or that they take away any of the rights conferred in Part-III of the Constitution or the parent statute, the Courts do not stay the operation of such a statute.
7. In view of the fact that there are adequate options available enabling the PIBOs to meet their obligations, this Court is not inclined to stay the operation of EPR Guidelines. This Court is also fortified by an Order dated 09.01.2023, passed by the High Court of Uttarakhad at Nainital in W.P.PIL/93/2022 titled as Jitendra Yadav v. Union of India and Ors., wherein the High Court of Uttarakhand has also not stayed the operation of the very same guidelines which are sought to be challenged in the present Petition.
8. In view of the above, this Court is not inclined to pass any interim directions in favour of the Petitioner.
9. Accordingly, the application is dismissed.
SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J MAY 25, 2023 Rahul W.P.(C) 5643/2022 Page 6 of 6 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 25/09/2023 at 05:10:53