Patna High Court
Saha And Bright Polytech Pvt. Limited vs The Union Of India on 17 September, 2021
Bench: Chief Justice, S. Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15418 of 2021
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1. Saha and Bright Polytech Pvt. Limited a Company incorporated under the
provisions of the Companies Act, 1956 having its registered office at C/o
Tara Devi, Khirodhapur, Khusrupur, Patna Bihar, through its Director,
Manish Kumar, aged about 40 years (male), son of Binay Kumar, resident of
Bharatpur Simli, Malsalami, Patna City P.S. Malsalami, P.O. Marufganj,
District - Patna.
2. Annapurna Disposable Pvt Limited, a Company incorporated under the
provisions of the Companies Act, 1956 having its registered office at
Sonouli Chowk, Hansdah, P.O. Gulabbag, P.S. Sadar, District Purnea,
through its Director, Sumit Kumar, aged about 34 years (male), Son of
Ashok Choudhary, resident of Sonouli Chowk, Hansdah, P.O. Gulabbag,
P.S.- Sadar, District - Purnea.
... ... Petitioner/s
Versus
1. The Union of India through the Secretary, Ministry of Environment, Forest
and Climate Change, Government of India, New Delhi.
2. The Secretary, Ministry of Environment, Forest and Climate Change,
Government of India, New Delhi.
3. The State of Bihar, through the Principal Secretary, Department of
Environment, Forest and Climate Change, Government of Bihar, Patna.
4. The Principal Secretary, Department of Environment, Forest and Climate
Change, Government of Bihar, Patna.
5. The Bihar State Pollution Control Board, through its Chairman, Parivesh
Bhawan, Plot No. NS- B/2 Patliputra Industrial Area, Patliputra, Patna
(Bihar) - 800010.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Avinash Shekhar, Advocate
Mr. Piyush Ranjan, Advocate
Mr. Rajan Prakash, Advocate
Mr. Suraj Samdarshi, Advocate
For the Respondent/s : Dr. K.N. Singh, ASG
Mr. Parijat Saurav, Advocate
Mr. Anant Pd. Singh, GP-15
Mr. Ratnesh Kumar, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Patna High Court CWJC No.15418 of 2021 dt.17-09-2021
2/6
Date : 17-09-2021
Petitioners have prayed for the following relief(s):-
"i) For issuance of a writ, order or
direction in the nature of certiorari for quashing
notification contained in S.O. 152 (E) dated
10.02.1988issued by Respondent No.1, in exercise of powers conferred under section 23 of Environment (Protection) Act 1986, for delegating its powers under section 5 thereof to the State of Bihar, as being unconstitutional on the grounds that it suffers from the vice of excessive delegation of legislative power as it gives plenary, unguided and uncontrolled power to the State of Bihar.
ii) For issuance of a writ order or direction in the nature of certiorari for quashing notification no. Parya Van (Muk.)-09/2019-406 (ई) /E.F. & C.C. dated 16.06.2021 whereby the manufacture, import, storage, distribution, sale, transport or use of disposable single use plastics like thermocol (polystyrene) cutlery, water pouches & packets, plastic flags, banners and buntings has been completely prohibited in the State of Bihar, as being unconstitutional and violative of Article 14 and 19 of the Constitution of India; and also being ultra vires the provisions of the Environment (Protection) Act, 1986 and the Plastic Waste Management Rules, 2016.
iii) This Hon'ble Court may adjudicate and hold that the Respondent State was duty bound to consult the stakeholders and publish the draft notification for public comments/opinion prior to publishing the impugned notification.
iv) This Hon'ble Court may further adjudicate and hold that the central government under S.I.152(E) dated 10.02.1988 has giv en plenary, unguided and uncontrolled power to the State of Bihar to issue directions since it has not prescribed any conditions and limitation for Patna High Court CWJC No.15418 of 2021 dt.17-09-2021 3/6 giving such directions, and thus S.I. 152 (E) dated 10.02.1988 suffers from the vice of excessive delegation of legislative power and deserves to be declared as ultra vires and unconstitutional.
v) This Hon'ble Court may adjudicate and hold that delegated legislation is permissible only for ancillary or non-essential functions or for filing out details within the framework of the parent act and not for surpassing the provisions of the parent legislation itself.
vi) This Hon'ble Court may further adjudicate and hold that since the manufacture, import, storage, distribution, sale, transport or use of disposable single use plastics like thermocol (Polystyrene) cutlery , water pouches & packets, plastic flags, banners and buntings is not prohibited under the Environment (Protection) Act, 1986 and the plastic Waste Management Rules, 2016, the Respondent State of Bihar by way of delegated legislation cannot surpass and issue a blanket ban on the same.
Vii) This Hon'ble Court may further adjudicate and hold that in view of section 6(2)
(d) of the Environment (Protection) Act, 1986 the power to prohibit the handling of a hazardous substance is exclusively conferred on the Central Government and the State Government cannot issue directions for prohibiting any hazardous substance.
viii) This Hon'ble Court may further adjudicate and hold that without affording the petitioners and opportunity to discharge the "Special Burden of Proof", as laid down by the Hon'ble Supreme Court in the case of A.P. Pollution Control Board Vs. M.V. Nayadu and Ors. (1999) 2 SCC 718, regarding mitigating circumstances surrounding the injurious effect of Thermocol (polystyrene), the Respondent State of Bihar cannot prohibit the petitioners from manufacturing and dealing in thermocol Patna High Court CWJC No.15418 of 2021 dt.17-09-2021 4/6 (polystyrene)cutlery.
ix) This Hon'ble Court may further adjudicate and hold that without conducting and environment impact assessment of the damage being caused by single use thermocol (polystyrene) cutlery, water pouches & packets, plastic flags, banners and buntings, the respondent state cannot prohibit the same.
x) This Hon'ble Court may further adjudicate and hold that the "precautionary principle" as laid down by the Hon'ble Court in case of A.P. Pollution Control Board Vs M. V. Nayadu and Ors. (1999) 2 SCC 718, does not completely do away with the requirement to conduct minimal scientific analysis/studies of the environmental harm being caused by the substance concerned.
xi) This Hon'ble Court may further adjudicate and hold that prior to banning/prohibiting thermocol cutlery, the Respondents were duty bound conduct and assessment of the environment impact caused by the most probable alternatives.
Xii) This Hon'ble Court may further adjudicate and hold that the Respondent State cannot curtail the period fixed in the draft Plastic Waste Management (Amendment) Rules, 2021 notified vide GSR 169 (E) dated 11.03.2021 for prohibiting single use polystyrene items from 01.07.2022 to 12.12.2021.
xiii) This Hon'ble Court may further adjudicate and hold that the powers under section 5 of the Environment (Protection) Act, 1986, are limited to issuing directions to a particular polluting establishment dealing in hazardous substance and does not confer general power to ban/prohibit/restrict and hazardous substance.
Xiv) This Hon'ble Court may further adjudicate and hold that action of the Respondent State in prohibiting single use Patna High Court CWJC No.15418 of 2021 dt.17-09-2021 5/6 disposable thermocol (polystyrene) cutlery, but not prohibiting single use multi-layer packaging, which includes one or more layers of plastic, is colorable exercise of legislative power.
xv) This Hon'ble Courts may further adjudicate and hold that since the petitioner's unit have all the requisite environment clearances from the Respondent Bihar Pollution Control Board, the petitioner's unit have all the requisite environment clearances from the Respondent Bihar Pollution Control Board, the petitioner's unit cannot be prohibited.
xvi) This Hon'ble Court may direct the Respondent State to provide reasonable compensation to the petitioners on account of the impending closure of their industry.
xvii) To award any other relief or reliefs for which the petitioners are found entitled in the facts and circumstances of the case."
After the matter was heard for some time, not finding favour with submission made across the bar, Shri Suraj Samdarshi, learned counsel for the petitioners, under instructions, seeks permission to first approach the authority inviting attention of the rules framed by the Central Government.
Liberty, as prayed, is granted.
As and when any such request is repeat, the authority shall consider expeditiously and positively within a period of four months therefrom.
Patna High Court CWJC No.15418 of 2021 dt.17-09-2021 6/6 Petition stands disposed of reserving liberty aforesaid.
Interlocutory application(s), if any, also stands disposed of.
(Sanjay Karol, CJ) ( S. Kumar, J) Ashwini/Sujit/ AFR/NAFR CAV DATE Uploading Date 20.09.2021 Transmission Date