Uttarakhand High Court
Shree Shaandar Industry Private ... vs State Of Uttarakhand And Another on 31 August, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE CHIEF JUSTICE SHRI VIPIN SANGHI
AND
JUSTICE SHRI RAMESH CHANDRA KHULBE
31st AUGUST, 2022
Special Appeal No.284 of 2022
Shree Shaandar Industry Private Limited ...... Appellant
Vs.
State of Uttarakhand and Another ...... Respondents
(2) Special Appeal No.285 OF 2022
Sree Durga Fiber Products Private Limited ......Appellant
Vs.
State of Uttarakhand and Another ...... Respondents
(3) Special Appeal No.286 OF 2022
Gitanshi Polychem Private Limited ...... Appellant
Vs.
State of Uttarakhand and Another ...... Respondents
(4) Special Appeal No.287 OF 2022
M/s Shyamrai Ecopack Inc Through its Authorized
...... Appellant
Vs.
State of Uttarakhand and Another ...... Respondents
Presence: -
Dr. K.H. Gupta, Ms. Pallavi Bahuguna, Mr. Rafat Munir Ali and Ms.
Irum Zeba, learned counsel for all the appellants.
Mr. Anil Bisht, learned Additional Chief Standing Counsel for the
State of Uttarakhand.
JUDGMENT:(Per Shri Vipin Sanghi, Chief Justice) The present special appeals are directed against the common order dated 19.07.2022 passed by the learned Single Judge in a batch of writ-petitions including Writ-Petition (M/S) No.1026 of 2021, "Gitanshi Polychem Private Ltd. Vs. State of Uttarakhand & Anr." whereby the learned Single Judge has dismissed all the writ-petitions wherein the writ-petitioners had sought a direction to the respondents to allow them to manufacture, store, carry, transport in order to export their products i.e. disposable utensils of plastic and kitchenware outside the State of Uttarakhand and in the international market where it is allowed to be used.
2. The petitioners also sought the quashing of the Government notification dated 16.02.2021 issued by the State Government in exercise of the powers conferred by Section 3(1) of the Uttarakhand Plastic and Other Non-Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013.
3. The learned Single Judge referred to the order passed by us in WPPIL No.93 of 2022 by placing reliance on the impugned notification dated 16.02.2021. The learned Single Judge observed that it is no more in dispute that plastic and polythene both are major threat to the environment and ecological balance. Specially, in Sub-Himalayan region which consists majority of the State of Uttarakhand, the ecology is very delicate which requires proper nursing and proper diligence on the part of the authorities from causing further damage.
4. The submission of the learned counsel for the 2 appellants is that the learned Single Judge has not considered the legal submissions advanced by the petitioner premised on the language of Section 3 of the aforesaid Act (The Act).
5. Mr. Gupta submits that the said Act in Section 3(1) reads as follows:-
"3. Restriction or prohibition on use of certain thing manufactured from non- biodegradable material.-(1) 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."
6. He submits that prior to issuance of the impugned notification dated 16.02.2021 by reference to Section 3(1) of the aforesaid Act, it was necessary for the State Government to lay down the norms by notification so as to, inter alia, impose restrictions on violation in the manufacture, sale, purchase, storage, distribution and use of plastic or other non- biodegradable material within the State of Uttarakhand, which is contrary to such norms. He submits that no norms have been laid down by the State Government and straightway the impugned notification dated 16.02.2021 has been issued.
7. At this stage, we may notice the relevant extracts of the notification dated 16.02.2021 "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 colour pigments present in 3 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 rain water infiltration into the soil hindering recharge of ground water;
And whereas, the plastic bags when discarded can get filled with rain water 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 eco-systems, on tourists places, heritage sites, eco-fragile areas like- Bugyals, high altitude areas and on agriculture and forest areas.
Now, therefore, in exercise of the powers conferred by section (1) of section 3 of the Uttarakhand Plastic and Other Non Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013, the Governor is pleased to allow to impose the restriction and prohibition on plastic as follows:-
1. (a) No person, by himself or through another, shall knowingly or otherwise, 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 Provided above restriction shall not be applicable on 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.
(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, stirrer etc. of any size and shape.
(iii). Single use food packaging containers made up of recycled plastic of any size, shape, thickness and colour used to cover-carry, store food/liquid 4 items.
Note: Compostable plastics shall confirm to the Indian Standard; IS 17088:2008. The manufacturers or seller of bio-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 notification."
(emphasis supplied)
8. The appellants are particularly aggrieved by the complete ban on the sale, trade, manufacture, import, storage, carrying, transportation, use, supply or distribution of the 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, stirrer etc of any size and shape.
9. We have considered the submission of Mr. Gupta but we find no merit in the same for the reasons indicated hereinbelow.
10. Firstly, there is nothing to suggest that the State Government should, in the first round, lay down the norms by way of notification before issuing an order imposing restrictions under Section 3(1) of the aforesaid Act.
11. It is evident from a reading of the impugned notification dated 16.02.2021, that the same is a composite notification not only in respect of the norms but also in respect of the restrictions imposed by the State on the use of plastics.
12. Mr. Gupta has submitted that norms should have been laid down, as has been done by the Central 5 Government vide notification issued by the Ministry of Environment, Forest and Climate Change dated 12.08.2021, whereby the Central Government made the rules to amend the Plastic Waste Management Rules, 2016, namely, the Plastic Waste Management (Amendment) Rules, 2021. He has specifically drawn attention to the amendment made in Rule 4.
13. He draws the attention of the Court to Clause
(b), by which, after Sub-rule (1) of Rule 4, while imposing a ban on the manufacture, import, stocking, distribution, sale and use of the enumerated single-use plastic, including polystyrene and expanded polystyrene, the norms laid down in Clause (b) reads as under:-
"(b) plates, cups, glasses, cutlery such as forks, spoons, knives, straw, trays, wrapping or packing films around sweet boxes, invitation cards, and cigarette packets, plastic or PVC banners less than 100 micron, stirrers."
14. Thus, Mr. Gupta submits that the ban imposed by the Central Government is in respect of the enumerated articles which are less than 100 microns. However, the State has imposed a complete ban irrespective of the thickness/density of the aforesaid articles.
15. We do not find any merit in the aforesaid submission. Even under the notification dated 12.08.2021 issued by the Central Government, the stipulation with regard to thickness/ density in microns is in relation to wrapping or packing films, which are used around sweet boxes, invitation cards, cigarette packets, or in the production of PVC banners, by stating 6 that the same should not be less than 100 micron. The said stipulation of "less than 100 micron", in our view, does not attach to the articles earlier enumerated, namely plates, cups, glasses, cutlery such as forks, spoons, knives, straw, trays, and even to the later enumerated article, namely stirrers.
16. A perusal of the impugned notification shows that the State Government was conscious of the fact that certain types of polythene may be permitted to be used, and that is why in Clause 1.(a)(ii) it stated that the restrictions on polythene carry bags shall not be applicable, inter alia, on the "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".
17. In our view, it was not at all necessary for the State Government to first issue a notification laying down the so-called norms before imposing restrictions. As aforesaid, the impugned notification not only lays down the norms, but also imposes restrictions.
18. We, therefore, do not find any merit in the present appeals and the same are, accordingly, dismissed.
19. Pending applications, if any, also stand disposed of.
________________ VIPIN SANGHI, C.J.
________________________ RAMESH CHANDRA KHULBE, J.
Dated: 31st August, 2022 SS/RB 7