Uttarakhand High Court
WPMS/3202/2022 on 20 December, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE RAMESH CHANDRA KHULBE
WRIT PETITION (PIL) NO. 93 OF 2022
20TH DECEMBER, 2022
BETWEEN:
Jitendra Yadav .....Petitioner.
And
Union of India & others ....Respondents.
Mr. Dushyant Mainali, learned counsel for the petitioner.
Mr. Lalit Sharma, learned Standing Counsel for the Union of India.
Mr. S.N. Babulkar, learned Advocate General with Mr. C.S. Rawat, learned
Chief Standing Counsel for the State.
Mr. Rajeev Bhatt, learned counsel for the Central Pollution Control Board.
Mr. Aditya Pratap Singh, learned counsel for the State Pollution Control Board.
Mr. Ashish Joshi, learned counsel for the Nagar Palika Parishad, Haldwani.
Mr. Piyush Garg, learned counsel for the applicant in IA No.12 of 2022.
Mr. Siddhartha Singh and Mr. Hari Mohan Bhatia, learned counsels for the
applicants in IA Nos.13 and 14 of 2022.
Ms. Khushboo Tiwari Sharma, learned counsel for the applicants in IA Nos.15
and 16 of 2022.
Mr. Sandeep Tiwari, learned counsel for the applicant in IA No.18 of 2022.
Dr. Abhishek Manu Singhvi, Mr. Arvind Vashisth, Mr. Rajiv Nayyar, learned
Senior Counsels assisted by Mr. Ajay Bhargava, Mr. Aditya Singh, Mr. Aseem
Chaturvedi, Mr. Shantanu Chaturvedi, and Ms. Prerna Singh, learned counsels
for the applicants in IA Nos.20 and 21 of 2022.
With
WRIT PETITION (M/S) NO. 3202 OF 2022
WRIT PETITION (M/S) NO. 3209 OF 2022
The Court made the following:
ORDER:(per Hon'ble The Chief Justice Sri Vipin Sanghi) Pursuant to our order dated 24.11.2022, Mr. Sushil Kumar, Commissioner, Garhwal; Mr. Deepak Rawat, Commissioner, Kumaon; Mr. Vijay Kumar Yadav, Secretary, Department of Forest and Environment, Government of Uttarakhand, and; Mr. Sushanta Kumar Pattnaik, Member 2 Secretary, Uttarakhand State Pollution Control Board are present before us.
2. In Paragraph No.15 of our order dated 24.11.2022, we had referred to our order dated 12.09.2022 requiring all DFOs' to ensure that khasra plans of the forest lands are forthwith made available to all the Sarpanch of the Van Panchayats. We had also directed that all the khasra plans be uploaded on the website of the State Government, so that it could be accessed by the people to maintain vigilance.
3. In our last order dated 24.11.2022, we had directed that the said direction be complied with within two weeks, and non-compliance was to attract costs of Rs.10,000/- payable by the concerned DFO.
4. A compliance affidavit has been filed by Mr. Vijay Kumar Yadav, Secretary, Forest and Environment, Government of Uttarakhand. Along with this affidavit, he has placed on record a tabulation showing number of khasra plans as well as the khasras which have been uploaded on the website.
5. Mr. Rawat states that this process is continuing and he submits that some plans/ khasras were not available with the Forest Department, and the Revenue Department has been asked to provide the same.
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6. The two departments concerned are two wings/ limbs of the Government, and it cannot be an excuse that the Forest Department was not provided the khasra plans by the Revenue Department for all the plans/ khasras not being shared with the concerned Van Panchayats, and being uploaded. We direct the Sub-Divisional Magistrates in each of the sub-divisions to ensure that the khasra plans/ khasras are made available to the Forest Department to enable compliance of our aforesaid direction. The said exercise of uploading of all the plans and providing the same to the Van Panchayats should be completed within next six weeks, as prayed for by Mr. C.S. Rawat. However, it is made clear that no further time shall be granted for the same, and consequences- and provided for in our order dated 24.11.2022 shall follow.
7. In response to our direction issued in Paragraph No.20 of our order dated 24.11.2022, an affidavit has been filed by Mr. Dhruv Mohan Singh Rana, Joint Secretary, Panchayati Raj, Government of Uttarakhand, wherein he has tabulated the steps taken in Zila Panchyats and Gram Panchayats in compliance of Section 6 of the Uttarakhand Plastic and Other Non-Biodegradable Garbage (Regulation of Use and Disposal) Act, 2013.
8. Section 6 of the aforesaid Act reads as follows:- 4
6. Provision for placement of receptacles and places for deposit of non- biodegradable garbage. - It shall be the duty of the local authority, or any officer authorized by it, to-
(a) place or provide in proper and convenient situation public receptacles, or places for temporary deposit or collection of non-biodegradable garbage;
(b) provide separate dust bins for temporary deposit of non-biodegradable garbage other than those kept and maintained for deposit of bio-degradable garbage;
(c) provide for the removal of contents of receptacles, deposit and of the accumulation at all places provided under clause (a) of this section;
(d) arrange for recycling of the non-biodegradable garbage collected under this Act;
(e) all such receptacles should have the facility to be closed from the upper side facing the sky.
9. The affidavit, unfortunately, does not address the obligations required to be discharged by the local authorities. The affidavit, particularly, does not disclose as to at which places public receptacles have been installed for temporary deposit or collection of non-biodegradable garbage. It is not clear where the separate dust bins for temporary deposit of non-biodegradable garbage- other than those kept and maintained for deposit of bio-degradable garbage, have been installed. There is nothing stated as to how the garbage collected in the receptacles is being removed, and how the non-biodegradable garbage is being recycled. It is not disclosed that the receptacles have the facility to be closed from the upper side facing the sky.
10. Let an affidavit be filed strictly in compliance of Section 6 of the aforesaid Act by all the Pradhans of the Zila and Gram Panchayats. The pictures of the receptacles which are installed by the local authorities in public places should be 5 placed before the Court with complete particulars. In the affidavit they should disclose as to what are the difficulties being faced by them to implement the provisions of the aforesaid Act, and what assistance is required from the State to be able to discharge the obligations cast on them by Section 6 of the aforesaid Act.
11. It shall be the obligation of the Joint Secretary, Panchayati Raj, Government of Uttarakhand to communicate this direction to all the Zila Panchayats/ Gram Panchayats/ local authorities in the State for compliance and collate this affidavit and file the same before this Court before the next date.
12. In compliance of the directions issued in Paragraph Nos.21 and 22 of our order dated 24.11.2022, no effective steps appears to have been taken by the State. It is rightly pointed out by Mr. Mainali, that the State authorities have not issued notices to any of the commercial establishments, as specified in the notification dated 16.02.2021, issued by the State Government, requiring them to collect and deposit the plastic waste generated in their establishments to a particular recycler.
13. We direct the concerned District Magistrates to notify all the establishments referred to in the notification dated 16.02.2021 within their jurisdiction, of their said 6 obligation and also specify as to which recycler of plastic waste they should deposit their plastic waste with. The plastic waste recycler should be identified on the basis of distance from the establishment. Notices should also clearly state as to what would be the consequences of non-compliance of the obligations cast on the establishments in the said notification. Let the District Magistrates issue notices to all the establishments referred to in the notification dated 16.02.2021, positively, within the next four weeks. Compliance of the said obligation shall be enforced after the issuance of the notices.
14. The Central Pollution Control Board has placed before us a compilation. Mr. Mainali has drawn our attention to some relevant documents found in this compilation. The CPCB has issued directions under Section 5 of the Environment (Protection) Act, 1986 to the State Pollution Control Boards/ Pollution Control Committees/ Urban Development Departments for implementation of ban on Single Use Plastic (SUP) on 30.06.2022. These directions have been addressed to the Chairpersons of the State Pollution Control Boards/ Pollution Control Committees. The directions, which are relevant, read as follows:-
"Now, therefore, in view of the above and in exercise of powers vested under Section 5 of Environment (Protection) Act, 1986 to the Chairman, CPCB following directions are issued for compliance:7
1. To set up a Control Room to facilitate activities related to effective implementation of SUP ban including the following:
(a) Provide assistance, guidance, clarification and information as may be sought by various stakeholders regarding ban on SUP items, which may include but not limited to the following:
Specific items covered under/ excluded from SUP Ban.
Alternatives to banned SUP items and their availability in the respective State/ UT. Guidance for filing of complaints on SUP Public Grievance App.
In case the complainant is not able to file the compliant on the SUP Grievance App, the Control Room in charge shall obtain details regarding the Complaint and register the Compliant under the "Register Compliant" section on the SUP Compliance Monitoring Portal the Portal has provision for sending the complaint to the concerned Local Body for further necessary action. Details are placed at Annexure I. Guidance for operation of SUP Compliance Monitoring Portal.
Issues related to switching over to Alternatives including issue of Consent/ Registration to Plastic producers (Consent Mechanism/ OCCMS/ Closure Notice/ Renewal).
Compostable plastic manufacturers: Certification procedure, testing facilities, certified compostable plastic manufacturers."
"5. To undertake Comprehensive awareness activities which should include but not limited to the following measures:
a. Publish news articles in local newspapers regarding ban on SUP items.
b. Display banners/ hoarding in important and potential hotspots such as railway stations, bus stops, petrol pumps, tourist places, marriage lawns and market areas as and where applicable.
c. Effective use of social media including twitter/ facebook/ instagram/ youtube and official website on regular basis.8
d. Organize rallies through educational institutions and voluntary groups.
e. Organize workshops/ interaction meetings with industries, colleges, schools, RWAs.
f. Organize sensitization campaigns at market places, shopping malls, hotels, road side eateries.
g. Promote SUP Grievance App
(https://cpcb.nic.in/uploads/SUPApp.pdf) through social
media and other platforms and take necessary measures for timely resolution of complaints raised on the App.
6. To undertake intensive enforcement activities w.r.t. SUP ban which should include but not limited to the following:
a. To carry out inspections of industries & commercial establishment and take necessary measures such as seizure of goods, cancellation of commercial licenses, levying of Environmental Compensation etc. against the violators. It is to be ensured that the inspections be done using the Field Inspection Module and necessary updates on Action taken against the violators are uploaded on the SUP Compliance Monitoring Portal.
b. To coordinate with State Authorities to ensure grievance raised in the SUP Public Grievance App or any other similar App available with the local authorities are resolved in a time bound manner.
7. Characterization of municipal solid waste for presence of banned SUP items in compliance of Directions dated July 29, 2021 issued to SPCBs/ PCCs on the subject."
15. Similar communication has also been addressed by the CPCB to the Principal Secretary, State Urban Development Department, containing similar directions for implementation. The relevant directions read as follows:-
"1. To direct the concerned State Authorities to implement following action points to ensure effective implementation of SUP ban:
a. District-wise identification of major Commercial Establishments (Malls/ Market place/ Shopping Centers/ Cinema Houses/ Tourist Locations/ Schools/ Colleges/ Office 9 complexes/ Hospitals & other Institutions) and Stockiest/ Retailers/ Sellers/ Importers of banned SUP items/ Street Vendors/ Vegetable & Fruit Markets/ Malls and other similar entities which are dealing in bulk in the aforementioned single use plastic items.
b. To take necessary action, including cancellation of commercial licenses issued against the identified entities if found violating stipulated conditions. c. To issue fresh commercial licenses to major Stockiest/ retailers/ sellers/ and Commercial Establishments with the condition that they shall not be stocking/ selling/ using banned SUP items.
d. To frame local bye-laws for levying Environmental compensation in line with CPCB Guidelines for violation of stipulated conditions.
e. To sensitize through workshops/ webinars the aforementioned identified entities and to direct them to take necessary action to ensure zero inventory of banned SUP items by July 01, 2022.
2. To conduct field inspections in association with District Magistrate, District Police & Local Urban and Rural Authorities to eliminate stocking, sale & usage & as per format.
3. To identify SUP Producers engaged in production of banned SUP items in informal sector/ suppliers of plastic raw material to such producers through contact tracing/ public notice/ public grievance reporting etc. & initiating action against them in association with local authorities.
4. To provide information for Mapping of District in each State/ UT for the SUP App being developed by CPCB.
5. To coordinate with State Authorities to ensure grievance raised in the SUP App or any other similar App available with the local authorities are resolved in a time bound manner. RO, SPCB concerned coordinate with local authorities to resolve the grievance till details as per "10' above are provided and the source/ origin of banned SUP items are traced and action is taken against the defaulters.
6. To take penal action/ levy EC on violators of stipulated conditions of the said Notification."10
"Whereas, the third National Task Force Meeting was convened by MoEF& CC on June 26, 2022 in which the SPCBs/ PCCs were directed to execute the following action points:
(1) Establishment of control room to monitor the enforcement of SUP ban by July 01, 2022.
(2) Survey of manufacturing locations/ sites, storage warehouse for stocking of banned single use plastic etc. (3) Survey of municipal solid waste for presence of banned SUP items.
(4) Pan India Awareness campaign covering the following:
Regular newspaper advertisements on banned SUP items and alternatives Sensitization workshops with industry Field publicity activities (hoardings and displays) at important public places, community assembly points, markets, tourist spots, religious places, bus terminals.
Sensitization campaigns at market places, shopping malls, hotels, road side eateries, and......"
"Now, therefore, in view of above and in exercise of powers vested under Section 5 of Environment (Protection) Act, 1986 to the Chairman, CPCB following directions are issued for compliance:
1. SUP Compliance Monitoring Portal (http://cpcbplastic.in/sup/) a. To ensure that all Local Bodies in your jurisdiction are registered on the SUP monitoring portal.
b. To direct all Local Bodies to enlist all the major Commercial Establishments (Malls/ Market place/ Shopping Centers/ Cinema Houses/ Tourist Locations/ Schools/ Colleges/ Office complexes/ Hospitals & other Institutions) and Stockiest/ Retailers/ Sellers/ Importers of banned SUP items/ Street Vendors/ Vegetable & Fruit Markets/ Malls and other similar entities which are dealing in bulk in the aforementioned single use plastic items operating in their jurisdiction on the portal.
c. To direct all Local bodies to carry out intensive field inspections on the Commercial Establishments through the Field Inspection Module and file the inspection report as per procedures specified on the Portal.
d. To take appropriate action including seizure of goods, cancellation of commercial licenses, levying of Environmental 11 Compensation etc. against the identified violators of SUP Ban and report the same on the Portal.
e. To ensure that complaints submitted by the Control Room on the portal related to sale & usage of SUP are resolved within seven days of lodging of Complaint and action as deemed fit is taken by the concerned Authorities.
2. SUP Grievance App a. To ensure that complete information (mapping of districts & identification of concerned authorities) is provided to the State Boards for onward submission to CPCB to make the App fully operational in your jurisdiction.
b. To ensure that complaints raised by the citizens related to sale & usage of SUP are resolved within seven days of lodging of Compliant and action as deemed fit is taken by the concerned Authorities."
16. The CPCB has recently addressed a communication to the Chairpersons of all the SPCBs/ PCCs on 13.12.2022. The directions issued under Section 5 of the Environment (Protection) Act, contained in this communication read as follows:-
"NOW THEREFORE, in exercise of powers vested under Section 5 of Environment (Protection) Act, 1986 to the Chairman CPCB, following directions are issued:
1. To direct all bulk waste generators such as E-commerce companies, online platforms/ market places, supermarkets/ retail chains/ hotels, commercial and office complexes, educational institutions operational in your jurisdiction to procure plastic packaging materials as well as products from PIBOs who are registered on centralized EPR portal.
2. To provide a comprehensive status report of such bulk waste generators mentioned in Sl. no.1 operating in your State/ UT as per format given at Annexure I."
17. On 19.12.2022, the CPCB has issued clarification to the Member Secretary, Uttarakhand Pollution Control Board 12 with respect to submission of EPR action plan by registered PIBOs on Centralized EPR Portal-reg. The clarification reads as follows:-
"This has reference to the letter no. UKPCB/HO/ No.-183- 577/2022/1425 dated 01.12.2022 received from Uttarakhand Pollution Control Board. The letter has been examined and following are CPCB's observations:
a. Section 7 of EPR Guidelines gives assessment details of category wise & year wise Extended Producer Responsibility (EPR) Target for Producer / Importer/ Brand Owner based on plastic packaging material sold in the market for the last two financial years.
b. As per Clause 11.5, the Registered PIBOs shall provide certificates issued by the Registered PWPs for fulfillment of Extended Producer Responsibility of PIBOs. c. The Centralized EPR Portal developed by CPCB in accordance with the EPR Guidelines has provisions for auto calculation of category/ year wise EPR targets of PIBOs, based on plastic packaging sold as per details given in Section 7 of the EPR Guidelines.
d. As part of the EPR Action Plan, the PIBOs are required to submit the certificates issued by the Registered PWPs for fulfillment of EPR obligations as per the EPR Targets auto calculated from the sales details.
It may further be noted that Rule 9(1) & Rule 9(2) of PWM Rules have been amended vide MoEF & CC Notification dated February 16, 2022 and July06, 2022.
Rule 9(1) of PWM Rules, 2016 originally stated that the producers, within a period of six months from the date of publication of these rules, shall work out modalities for waste collection system based on Extended Producers Responsibilities and involving State Urban Development Departments, either individually or collectively, through their own distribution channel or through the local Rule 9(2) of PWM Rules, 2016 originally stated that Primary responsibility for collection of used multi-layered plastic sachet or pouches or packaging is of Producers, Importers and Brand Owners who introduce the products in the market. They 13 need to establish a system for collecting back the plastic waste generated due to their products. This plan of collection to be submitted to the State Pollution Control Boards which applying for Consent to Establish or Operate of Renewal. The Brand Owners whose consent has been renewed before the notification of these rules shall submit such plan within one year from the date of notification of these rules and implement with two years thereafter.
As per MoEF & CC Notification dated February 16, 2022 in Rule 9, in sub-rule (1), for the words - as per guidelines issued under these rules from time to tile, the words - as per guidelines specified in SCHEDULE- II shall substituted As per MoEF & CC Notification dated July 06, 200 in Rule 9 of the said rules, - (i) for sub-rule (1), the following sub- rule shall be substituted, namely: - (1) The Producers, Importers and Brand Owners shall fulfill Extended Producers Responsibility for Plastic Packaging as per guidelines specified in Schedule- II;
(ii) in sub-rule (2), the portion beginning with the words - this plan of collection and ending with the words - two years thereafter shall be omitted."
18. It appears to us that on the ground, the aforesiad directions have substantially not been complied with in the State of Uttarakhand.
19. We have interacted with the aforesaid officers, them and impressed upon them the urgent need to strictly enforce all the relevant laws and directions. They have assured strict and full compliance of not just the statutory provisions contained in the relevant laws- Central laws as well as the State laws relating to control and elimination of solid waste, particularly, plastic waste- including Single Use Plastic, but also the directions issued by the CPCB under Section 5 of 14 the Environment (Protection) Act, 1986, which are binding and enforceable.
20. We have observed earlier as well in this case, and this has been our experience in other cases that we are dealing with, that the higher authorities simply issue orders requiring their sub-ordinates to comply with the law or the directions issued by us, and to leave it at that. In our view, this is no compliance. It falls on those occupying high offices in the bureaucratic setup, to ensure that the mandate of the law and the directions issued by the Court are actually implemented on the ground. Therefore, it is necessary for all such authorities to monitor, on day-to-day basis, the actual implementation of laws and directions issued by Court at ground level, and wherever it is found that the law and directions are not being complied with, consequential and remedial steps should be taken.
21. The Commissioner, Garhwal Division and the Commissioner, Kumaon Division, the Member Secretary, Uttarakhand State Pollution Control Board, and the Secretary, Department of Forest and Environment, who are present in the Court, have personally assured the Court that they shall re-double their efforts to ensure actual compliance of law on the ground. They shall remain personally bound to fulfill this assurance 15
22. We hope and expect that with today's interaction, the four officers who are present today would go back with renewed motivation, and they would redouble their efforts to ensure compliance of laws and our directions.
23. Mr. Mainail has suggested that to prevent strewing of garbage, particularly plastic garbage, along the roads in the State, all private and public tourist vehicles which enter the State, as well as the taxis which are operating within the State, should be required to keep a garbage collection bin in their vehicle, so that the occupants can be told to collect the non-biodegradable garbage in the said bin, rather than throwing the same on the roads.
24. In our view, this is a very useful suggestion and should seriously be considered for implementation by the State authorities. The Commissioners, Garhwal and Kumaon regions, who are also discharging responsibilities of the Regional Transport Authorities within the State, have assured this Court that in the next meeting of the Regional Transport Authority, this aspect would be discussed. The Secretary, Transport, is directed to examine the said aspect and take appropriate steps in this regard.
25. The complaints which have been received on the e- mail created by the Registrar Judicial have generally be remedied from time to time. However, there are few which 16 have not been remedied. The compilation of those complaints has been handed over to the Commissioners, Garhwal and Kumaon divisions, and they are directed to look into them, and the same shall be remedied without any delay.
26. In our order dated 07.07.2022, in Paragraph No.16, we had directed as follows:-
"16. We also direct that those producers, importers and brand owners, who do not register with the Uttarakhand State Pollution Control Board within the next fifteen days, shall not be permitted to either produce, or import into the State of Uttarakhand, or sell products of their brands, in the State of Uttarakhand, and the State shall ensure that all such products, which are contained in plastic sachets or pouches or packaging, are not permitted to enter the boundary of the State, or sold, in any manner whatsoever. Wide publicity shall be given to these directions by the State, so that all concerned have notice of it."
27. It is informed by Mr. Aditya Pratap Singh, who appears for the Uttarakhand State Pollution Control Board, as well as by Mr. Rajeev Bhatt, who appears for the Central Pollution Control Board, that Producers, Importers and Brand Owners, who are operating in more than two States, are required to register on the portal of the CPCB with the CPCB, and not with the State Pollution Control Board of the State where they are operating. We are further informed that the registration process itself entails the submission of EPR plan by the registrant which is retained by the CPCB, and presently, the EPR is not being shared with the concerned State;
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28. In our view, it is essential that the EPRs are shared by the CPCB with the concerned State Pollution Control Boards, where the PIBOs are operating, so that the concerned State Pollution Control Board is in a position to examine the EPRs and also ensure its implementation. After all, it is the State Pollution Control Board, in each State, which has the authority to act on the ground, and it is the State Pollution Control Board which mandated with the implementation of the Environment (Protection) Act, and other Pollution Control legislations.
29. We, therefore, direct the CPCB to share the EPRs with the concerned State Pollution Control Boards where the PIBOs are carrying on their activities.
30. Interim orders to continue till 15.01.2023 by when the PIBOs should obtain their registrations. They may take the help of Help Desks created by the State Pollution Control Board at its regional offices to upload their applications. Those PIBOs who obtain their registration by the said date, shall be allowed to continue their operations. However, those who do not obtain their registration by the said date, shall be actioned in terms of notice dated 02.12.2023, issued by the office of the Member Secretary, Uttarakhand Pollution Control Board.
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31. We clarify, that our direction contained in Paragraph No.16 of our order dated 07.07.2022 shall not apply to those PIBOs, who have obtained registration with the CPCB on account of the fact that they are operating in more than two States, and have submitted their EPRs with the CPCB.
32. The presence of Commissioner, Garhwal; Commissioner, Kumaon; Secretary, Department of Forest and Environment, Government of Uttarakhand, and; Member Secretary, Uttarakhand State Pollution Control Board is dispensed with till further orders.
33. It has been brought to our notice that the meaning of "obligated entities", as contained in Plastic Waste Management (Amendment) Rules, issued on 16.02.2022, excludes micro and small enterprises as per the criteria of Ministry of Micro, Small and Medium Enterprises, Government of India.
34. We, therefore, direct the respondent authorities to be mindful of said exclusion while taking action in terms of their order.
35. List on 20.02.2023.
IA No.18 of 2022 19
36. Issue notice. Mr. Ashish Joshi appears and accepts notice.
37. Let reply be filed before the next date.
38. List on 20.02.2023.
IA Nos.20 and 21 of 2022
39. Issue notice. Learned counsels appear and accept notice. Learned counsels wish to file their respective replies. Let the same be filed by the petitioner as well as the State Pollution Control Board and the CPCB.
40. List on 09.01.2023.
(VIPIN SANGHI, C.J.) (RAMESH CHANDRA KHULBE, J.) Dated: 20th December, 2022 NISHANT