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BEFORE THE NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH

NEW DELHI …………..

APPLICATION NO. 26 OF 2013 (THC)

In the matter of

1. Goodwill Plastic Industries, Plot No.49, Industrial Area Phase II, Chandigarh.

2. Hardeep Industries, Plot No.724, Industrial Area Phase II, Chandigarh.

…………..Applicants Versus

1. Union Territory of Chandigarh Through its Secretary (Environment), Sector 9, Chandigarh.

2. Municipal Corporation Through its Commissioner, Sector 17, Chandigarh.

3. Chandigarh Pollution Control Committee Through its Chairman-cum-Adviser, Chandigarh Administration, Sector 9, Chandigarh

……...…….Respondents Counsel for Applicants :

Mr. Aman Preet, Advocate Counsel for Respondents :

Mr. Shubham Bhalla, Advocate, for Respondents No.1 & 3

AND

APPLICATION NO. 53 OF 2013 (THC)

In the matter of

1. Jarnail Singh S/o S. Hazoor Singh, 906, Sector 65, S.A.S. Nagar, Mohali (Pb.)

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2. Karnail Singh, S/o S. Jagir Singh, 2074, Phase X, Mohali (Pb.)

…………..Applicants Versus

1. Union Territory of Chandigarh Through its Secretary (Environment), Sector 9, Chandigarh.

2. Municipal Corporation of Chandigarh Through its Commissioner, Sector 17, Chandigarh.

……………..Respondents

Counsel for Applicants :

Mr. Aman Preet, Advocate Counsel for Respondents :

Mr. Shubham Bhalla, Advocate, for Respondents No.1 & 3

ORDER/JUDGMENT

PRESENT :

Hon’ble Mr. Justice Swatanter Kumar (Chairperson)

Hon’ble Justice U.D. Salvi, (Judicial Member)

Hon’ble Dr. D.K. Agrawal (Expert Member)

Hon’ble Mr. P.S. Rao (Expert Member)

Hon’ble Mr. Ranjan Chatterjee (Expert Member)

Dated : August 8, 2013

JUSTICE SWATANTER KUMAR (CHAIRPERSON)

On 30th July, 2008, the Administrator, Union Territory of

Chandigarh, in exercise of the powers vested in him under Section

5 of the Environment (Protection) Act, 1986 (for short the

“Environment Act”) issued the following notification prohibiting

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usage, manufacture, storage, import, sale or transportation of

polythene/plastic carry bags in the U.T. of Chandigarh:

“NOTIFICATION

Dated 30.7.2008

No.ED/2008/684 whereas draft notification was issued by the Administrator, Union Territory, Chandigarh in exercise of powers conferred on him under Section 5 of Environment (Protection) Act, 1986 (29 of 1986) read with Govt. of India’s notification bearing No.S.O.667(E) dated the 10th September, 1992 which was published in the Chandigarh Administration’s Gazette (Extraordinary) vide No.ED/2008/125 dated 11th February, 2008 inviting objections from persons likely to be affected thereby within 60 days from the date of publication of the said draft notification.

And whereas objections and suggestions received within the aforesaid period have been duly considered by the Chandigarh Administration. Now, therefore, the Administrator, Union Territory, Chandigarh in exercising the delegated powers, under Section 5 of the Environmental (Protection) Act, 1986 hereby directs that no person including a shopkeeper, vendor, wholeseller or retailer, trader, hawker or rehriwala etc., shall use polythene/plastic carry bags for supply of goods in polythene/plastic carry bags and further directs that no person shall manufacture, store, import, sell or transport polythene/plastic carry bags in Union Territory, Chandigarh. The Administrator, Union Territory, Chandigarh hereby further directs that the following Officers shall implement these orders related to use, storage, import, selling, transportation and disposal and authorizes them to file complaints under Section 19 of the Environment (Protection) Act, 1986, namely :- 1. Deputy Commissioner, U.T. Chandigarh. 2. Director Environment, Chandigarh Administration. 3. Sub Divisional Magistrates in their respective jurisdiction. 4. Joint Commissioner-I & II, Municipal Corporation, Chandigarh. 5. District Food & Supply Officer, Chandigarh Administration. 6. Inspectors, Food & Supply Department, U.T. Chandigarh.

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7. Medical Officer Health, Municipal Corporation, Chandigarh. 8. Sanitary Inspectors o/o Medical Officer Health, Municipal Corporation, Chandigarh. 9. Food Inspectors of Health Department, U.T. Chandigarh.

Deputy Commissioner, U.T. Chandigarh shall act as the co-ordinator to implement above orders related to ban on the use, storage, import, selling, transportation & disposal of polythene/plastic carry bags.

The Administrator, Union Territory, Chandigarh hereby, further directs that the following Officers shall enforce above orders related to manufacture and also authorizes them to file complaints under Section 19 of the Environment (Protection) Act, 1986, namely :- 1. Deputy Commissioner, U.T. Chandigarh. 2. Director Environment, Chandigarh Administration. 3. Member Secretary, Chandigarh Pollution Control Committee. 4. Scientist ‘B’, Chandigarh Pollution Control Committee. 5. Assistant Environmental Engineer, Chandigarh Pollution Control Committee.

Member Secretary, Chandigarh Pollution Control Committee shall act as the co-ordinator to implement the ban on manufacture of polythene/plastic carry bags in U.T. Chandigarh.

This notification shall come into force with effect from 2nd October, 2008.

This supersedes the earlier notification bearing No.ED/2003/543 dated 16th Sept., 2003.”

2. The constitutionality, legality and correctness of the above

notification has been challenged by the applicants [Applications No.

26/2013(THC) and 53/2013(THC)]. The challenge to the notification is

based on the factual premise and grounds as stated hereinafter.

Jarnail Singh and Karnail Singh claim to be engaged in

manufacture and supply of virgin polythene bags which are not

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recycled ones, virgin/natural food grade HM, LLDPE, LDPE poly

bags, plastic sheets, plastic rolls and all kinds of industrial

packaging material under the name and style of M/s Goodwill

Plastic Industries. According to the applicants, they do not deal

with recycled plastic/polythene. They are carrying on the activity of

manufacture and supply of the same in the UT of Chandigarh,

States of Punjab, Haryana, Himachal Pradesh and even in some

other parts of the country. The products manufactured by them

strictly comply with the specifications and thickness standards, as

laid down in the relevant rules and/or notifications. Further, it is

the case of the applicants that they established this industry after

taking loan and availing credit limits for working capital from

different financial institutions. The applicants as well as the

workers under them are dependent upon this industry for their

livelihood. Besides, they are also registered with the Chandigarh

Pollution Control Committee for manufacture of plastic bags and

containers. They are manufacturing virgin polythene bags of

thickness not less than 30 microns and of size not less than 8”x

12”. They were granted the consent in terms of Section 25(4) of the

Water (Prevention and Control of Pollution) Act, 1974 (for short the

“Water Act”) and Section 21(4) of the Air (Prevention and Control of

Pollution) Act, 1981 (for short the “Air Act”). According to the

applicants, they are carrying on their business strictly in terms of

the consent orders and have not violated the same ever. The plastic

manufacture, sale and usage is governed by the Plastic

Manufacture, Sale and Usage Rules, 1999, as amended in 2003,

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which bars manufacture, stocking, distribution, sale, etc. of virgin

or recycled plastic bags of dimension less than 8” x 12” and

thickness of 20 microns. These rules do not ban the production,

sale and use of polythene bags. On 10th February, 1992, the

Chandigarh Administration issued a notification under Section 5 of

the Environment Act providing that the thickness of the polythene

bags shall not be less than 30 microns while maintaining the same

size i.e. not less than 8” x 12”. This continued for a number of

years and on 6th December, 2005, the Chandigarh Administration

issued a draft notification proposing a total ban on the manufacture

and use of polythene/plastic carry bags. Various objections to the

draft notification were filed and it had been brought to the notice of

the authorities concerned that the solution to the pollution

resulting from littering of plastic bags lay in proper collection,

segregation and safe disposal of polythene bags and not in banning

manufacture, sale and use of polythene carry bags. Referring to the

Municipal Corporation, Chandigarh’s activity to set up Sehaj Safai

Kendra, it was stated that civic agencies are unable to handle and

dispose of solid waste including casual carry bags effectively which

results in the sewerage system being choked besides the same

being detrimental to the health of animals due to consumption of

such polythene bags. Objections were also raised that the general

public would be deprived of reusable polythene like plastic bags and

a complete ban on which is bound to produce negative results and

implications like unemployment, hurting entrepreneurs, etc.

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3. The Administration of UT of Chandigarh, after considering

these objections, found them without substance, primarily on the

ground that human health, animal life and environmental concerns

are of much greater value than the economic interests addressed by

the applicants. It is the case of the applicants that the Chandigarh

Administration, contrary to its earlier stand based on proper

analysis, that the solution to the pollution caused from littering of

plastic bags lies in proper collection, segregation and safe disposal

of the same and not by imposing a complete ban, issued the

notification dated 11th February, 2008 proposing to completely ban

the manufacture and use of polythene carry bags in the UT of

Chandigarh and invited objections in regard to the same. Various

objections thereto were filed. Jarnail Singh along with Karnail Singh

filed the Writ Petition No. 6098 of 2008 challenging the draft

notification before the High Court of Punjab and Haryana at

Chandigarh. However, this writ petition was withdrawn with liberty

to challenge the final notification, as and when published. On 30th

July, 2008, the Chandigarh Administration issued the final

notification imposing a complete ban on manufacture and use of

polythene carry bags in the UT of Chandigarh.

4. Both these applicants filed another writ petition before the

same High Court challenging the final notification vide Writ Petition

No. 15230 of 2008 praying for a direction to the respondents to

discharge their statutory duties under the Municipal Solid Wastes

(Management and Handling) Rules, 2000 (for short the “MSW

Rules”).

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5. During the pendency of this Writ Petition, the MSW Rules

were amended in 2011. In fact the Plastic Waste (Management and

Handling) Rules, 2011 (for short the “Rules of 2011”) superseded

the Plastic Manufacture, Sale and Usage Rules, 1999. Under the

amended Rules of 2011, manufacture, stocking, distribution and

sale of carry bags made of virgin or recycled or compost plastic of

not less than 40 microns were permitted.

6. Relying upon the Rules of 2011 of the Ministry of Environment

and Forests (for short the “MoEF”), the partnership firm through its

partner, Jarnail Singh, along with another concern, M/s Hardy

Industries filed another Writ Petition, being W.P. No. 22691 of 2012

challenging the same notification dated 30th July, 2008 with

reference to the Rules of 2011.

7. Both the above petitions were transferred by the High Court of

Punjab and Haryana to this Tribunal. The W.P. No. 15230 of 2008

came to be registered as Application No.53 of 2013 (THC) while the

W.P. No. 22691 of 2012 as Application No.26 of 2013 (THC). Since

both these writ petitions challenged the same notification on similar

facts, however, on somewhat different grounds, and in fact,

common arguments were addressed by the learned counsel on both

these applications, it will be appropriate for the Tribunal to dispose

of both these applications by a common judgment.

8. Before we advert to the discussion on the case advanced by

the respondents in their pleadings, it would be proper for us to

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notice the grounds of challenge raised by the applicants to the

notification dated 30th July, 2008. They have contended that –

(a) the notification dated 30th July, 2008 issued by the UT of

Chandigarh is repugnant to the Rules of 2011, and thus would

be inoperative;

(b) in terms of the Rules of 2011, a person is entitled to carry on

the business of manufacture and sale of plastic bags of

prescribed thickness and this right to carry on the business

cannot be taken away by the notification of 30th July, 2008;

(c) there is no nexus between the notification and the object or

intent sought to be achieved thereof in relation to control of

pollution and thus, the notification cannot stand the scrutiny

of law; and

(d) the notification in question suffers from the vice of

discrimination inasmuch as if plastic is environmentally

hazardous, then putting a ban only on manufacture, sale and

use of plastic ‘carry bags’ is irrational and discriminatory. Also

the ban has been imposed only in the UT of Chandigarh vide

the notification dated 30th July, 2008 while no such ban has

been imposed or is in force in the adjoining districts of Punjab

and Haryana, which are practically part of the UT,

Chandigarh.

9. The respondents, during their submissions, not only refuted

the above contentions but also stated in their pleadings that the

effects of plastic bags on environment are quite devastating. The

ban in terms of the notification dated 30th July, 2008 is evidently in

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public interest, and is therefore, clearly permissible and protected

under Article 19(6) of the Constitution of India. The business and

commercial interests of a few manufactures cannot be allowed to

operate to the detriment of the public at large, especially where

interest of the future generations is involved. The main problem

with plastic bags is that after being sold, they normally end up as

trash whereupon they either come back to the landfill or are burnt.

Either of these is a very poor solution for the environment and

burning the plastic results in emission of toxic gases that harm the

environment and increase the level of Volatile organic

compounds (VOCs) in the air. Plastic bags litter all around. They

are non-bio-degradable and thus stay in the environment for a very

long time. It results into a major problem of uncontrollable littering,

thereby leading to unhygienic conditions and environmental

pollution. The coloured plastic is even more harmful in all these

aspects. The plastic is reused in one form or the other which even

makes it environmentally more serious and vulnerable. According to

the respondents, studies have shown that there are very few plants

that actually recycle plastic bags and most of the public authorities

either burn them or send them to the landfill sites.

Environmentally, cloth bags are a better alternative and are even

becoming an attractive proposition among environmental

supporters. The plastic/polythene carry bags result in blockage of

drains, pipelines and are even life threatening for the animals who

eat them along with other wastes.

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10. According to the respondents, in the draft notification No.

ED/2008/125 dated 11th February, 2008, complete reasons have

been given by the Chandigarh Administration for the proposed

imposition of the ban and the ban imposed ultimately is in

consonance with Section 5 of the Environment Act. The partial ban

earlier permitting the restricted use of micro plastic bags had failed

to achieve the desired results. The protective and ameliorated

impact of the impugned ban on environment, especially in the long

term and the relative importance and efficacy of the ban from the

perspective of sustainable development cannot be disputed. In order

to prevent environmental hazards, there was a need to adopt

dynamic environmental protective measures and the same had been

taken by virtue of imposition of the ban in question. The earlier

restrictions and regulatory measures imposed on the usage of

plastic bags have not achieved the desired results and a complete

ban on such bags had become inescapable and inevitable. To

prevent environmental degradation, it is the duty of the authorities

to adopt highly dynamic, yet appropriate measures, evolved with

experience and continuously responding and adapting to the felt

necessities of time, at the same time. Such duty is imposed upon

the Government authorities concerned in terms of Articles 48-A, 51-

A(g) and 21 of the Constitution of India. The issuance of the Rules

dated 4th February, 2011, superseding the earlier Rules of 1999 in

relation to plastic bags is not disputed by the respondents.

However, it is stated that the Rules of 2011 were not intended to

tinker with or lift the ban imposed by the notification of 30th July,

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2008. The Administrator, UT, Chandigarh, has been vested with the

powers of issuing appropriate orders and directions in terms of

Section 5 of the Environment Act, vide notification dated 10th

September, 1992 issued by the Government of India. The

Administrator, in furtherance to his delegated powers, had issued

the notification dated 30th July, 2008 which does not suffer from

any infirmity and is not liable to be quashed.

Discussion

11. A common legal thread runs amongst all the contentions

raised on behalf of the applicants. Thus all these contentions can

be dealt with by the Tribunal collectively.

12. The first and the foremost question that we are called upon to

answer is whether the notification dated 30th July, 2008 is

repugnant to or in conflict with the Rules of 2011. If so, then to

what effect?

13. The notification dated 30th July, 2008 was issued by the

Administrator, UT of Chandigarh in exercise of the powers vested in

him under Section 5 of the Environment Act, read with the

notification of 10th September, 1992 issued by the Government of

India. This notification had been issued by following the due

process under the law. Objections to the draft notification had been

invited, considered and upon due application of mind, the final

notification was issued. There is no challenge before us with regard

to the procedure adopted by the Administrator, UT of Chandigarh,

in the issuance of such notification. However, there is a challenge

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with regard to its legality and effect. The power under Section 5 of

the Environment Act states that notwithstanding anything

contained in any other law, however, subject to the provisions of the

Environment Act, the Central Government is vested with the power

to issue directions to any person, officer or authority, including

directions of closure, prohibition or regulation of any industrial

operation or process, and stoppage or regulation of supply of

electricity or water or other services to such industry. Such

directions can be prohibitory or preventive in their content and

effect. The Explanation to Section 5 of the Environment Act is

inclusive of the powers of wide amplitude that are vested in the

authority. The power to issue directions, as contemplated under

Section 5 of the Environment Act, is to achieve a different object

and is not a supervisory or a regulatory power, as are contemplated

under Sections 18 and 20A of the Water Act and the Air Act

respectively. The power to issue directions is not equitable to the

powers vested in the respective authorities for permitting the

carrying on of a business. By issuance of appropriate directions, it

is primarily to prevent environmental hazards. In other words,

Section 5 of the Environment Act relates to the role of the Central

Government where any environmental hazard has occurred or is

apprehended to occur as a result of any polluting activity through

an industrial activity, operation or process. Such direction can be

issued to any person, authority or officer who shall be bound to

comply with the same.

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14. The emphasis on exercise of powers under Section 5 of the

Environment Act is polluter centric. These powers could be

exercised by invoking precautionary principle, polluter-pays

principle or could even be prohibitory where the situation so

demands. In the present case, the contention of the UT

Administration is that they had conducted studies and tried various

other measures despite which they failed to control the

environmental hazards resulting from the manufacture and sale of

plastic carry bags, which resulted in issuance of the above

notification, has merits. The closure, prohibition or regulation

referred to in Explanation to Section 5 of the Environment Act is

relatable to an industrial activity, operation or process raising

environmental issues or hazards. It is in exercise of this power that

the notification dated 30th July, 2008 has been issued by the

competent authority. On the other hand, the scheme under

Sections 3, 6 and 25 of the Environment Act is distinct. The

Environment Act has been enacted with the object of protection and

improvement of the environment. The ethos of enactment of this

legislation was to prevent environmental degradation on the one

hand and ensure improvement of the same on the other. This was

directly relatable to the United Nations Conference on Human

Environment held at Stockholm in 1972. Environment includes

water, air and land and the inter-relationship which exists among

and between these and human beings, other living creatures,

plants, micro-organism and property. In furtherance to this

legislative intent, the legislature vested the Central Government

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with the powers to take measures to protect and improve

environment by enacting Section 3 of the Environment Act. Section

3(1) of the Environment Act vests the Central Government with

powers to take all such measures as may be necessary or expedient

for the purpose of protecting and improving the quality of the

environment and preventing, controlling and abating environmental

pollution. Section 3(2) of the Environment Act describes the

inclusiveness provided in such generic powers contained under

Section 3(1) of the Environment Act besides laying down standards

for the quality of environment, procedures and safeguards for

prevention of accidents, laying down procedures and safeguards for

handling of hazardous substances, establishment or recognition of

environmental laboratories, laying down standards for emission or

discharge of environmental pollutants from various sources, and

importantly planning and execution of nation-wide programmes for

prevention, control and abatement of environmental pollution.

Section 6 of the Environment Act concerns itself with the power of

the Central Government to make rules in regard to all matters as

stipulated in Sections 3 of the Environment Act. Section 6(2) of the

Environment Act indicates the fields for which rules can be framed

by the Central Government. Inter alia rules can be framed in regard

to the standards of quality of air, water or soil; the maximum

allowable limits of concentration of various environmental

pollutants; procedures and safeguards including prohibition and

restrictions on the handling of hazardous substances and also on

the location of industries and the carrying on of processes and

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operations in different areas. Similarly, Section 25 of the

Environment Act empowers the Central Government to frame rules

for carrying out the purposes of the Act. Section 25(2) of the

Environment Act then specifies the matters in relation to which it

can frame rules. The power to frame rules under Section 6 of the

Environment Act restricts itself to regulate environmental pollution

while Section 25 of the Environment Act gives much wider power to

frame rules as they could relate to any subject in relation to

carrying out the purposes of the Act.

15. The cumulative reading of Sections 3, 6 and 25 of the

Environment Act and the scheme underlying these provisions

clearly show that these provisions are regulatory and operate in a

specific field. The purpose and limitation of those fields are clearly

postulated under these provisions. Of course, there is residuary

power under Section 3(2)(xiv) of the Environment Act which gives

wide power to the Central Government with regard to taking of

measures deemed necessary or expedient for the purposes of

securing the effective implementation of the purposes of the Act.

Similarly, Section 25 of the Environment Act gives such power for

achieving the purposes of the Act, the protection and improvement

of the environment, being the very purpose of the Act, and to ensure

proper implementation of the various provisions of the Act in that

regard.

16. It is with reference to these provisions that the Rules of 2011

were framed by the Government in exercise of its power of delegated

legislation. Every delegated legislation has to be in consonance

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with the principal statute and cannot run contra thereto. These

rules were framed in supersession of 1999 Rules and were intended

to provide parameters for regulating the production, manufacture,

etc. of various plastic/polythene products. In terms of Rule 2 of the

Rules of 2011, the provisions of Rules 5 and 8 of the Rules of 2011

shall not apply to the manufacture of carry bags exclusively for

export purposes. ‘Carry bags’ means all plastic bags used to carry

commodities including self-carrying features. ‘Plastic’ has been

defined to mean material which contains as an essential ingredient,

a high polymer and which at some stage in its processing into

finished products can be shaped by flow. ‘Plastic waste’ means any

plastic product such as carry bag pouches or multi-layered plastic

pouch or sachet etc. which have been discarded after use or after

their intended life is over. The ‘virgin plastic’ means plastic material

which has not been subjected to use earlier and has also not been

blended with scrap or waste.

17. Rule 5 of the Rules of 2011 spells out the conditions which are

to be observed during the course of manufacture, stacking,

distribution, sale and use of carry bags and sachets. In terms of

Rule 5 (c), no person shall manufacture, stack or distribute any

carry bags made of virgin or recycled or compostable plastic which

is less than 40 microns in thickness. This very rule emphasizes

certain other conditions in relation to the use of plastic sachets and

other packets for different articles specifying different standards.

Rule 9 of the Rules of 2011 deals with registration of manufacturers

and recyclers. Under Rule 9 (c) of the Rules of 2011, no person

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shall manufacture plastic carry bags or recycled plastic bags or

multi-layered plastic pouch or sachet without obtaining the

registration certificate from the SPCB or PCC, as the case may be,

prior to the commencement of production. The scheme of these

rules is that a person who wishes to commence or enter into the

field of manufacture, storage, sale of multi-layered plastics, plastic

carry bags has to get registered and upon registration, the

production, sale and storage of such material shall be regulated by

the various provisions as afore-indicated. If a person does not

obtain registration in terms of Rule 9(c) of the Rules of 2011, such

person then, cannot carry on any of these activities. This rule thus,

states conditions that are precedent to the carrying on of such

business. In consonance with the provisions of the Environment

Act all these provisions of the Rules of 2011 specify regulatory

measures, compliance to which is essential for the grant of

registration in terms of these Rules. In contra-distinction to this,

the directions issued under Section 5 of the Environment Act are

primarily mandatory and are intended not only to act as a

regulatory measure but also as preventive and prohibitory measure.

They are in exercise of extraordinary powers vested in the Central

Government where in exercise of its powers and performance of its

functions under the Environment Act it issues such directions.

These directions are primarily intended to meet emergencies or

exigencies of environment. Their primary aim is to protect the

environment and ensure that the environment degradation does not

take place and no environmental hazards are caused. Wherever

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environmental pollution or certain pollutant activity occurs which is

found to apprehend environmental hazards, the directions to the

extent of closure and prohibition are issued. The Rules of 2011 and

the directions contemplated under Section 5 of the Environment

Act, as contained in the notification dated 30th July, 2008 operate

in distinct and independent fields. There is no conflict between the

two. The directions may come into play only when the first phase

of grant of registration and permission to carrying on of such

activity has been completed. These provisions are not in conflict

with each other but are complimentary and supplementary to each

other. Both of them aid/re-enforce the principal object of the Act,

i.e. protection and improvement of the environment.

18. Article 19(1)(g) of the Constitution gives fundamental right to

the citizen to practise any profession or carry on any occupation,

trade or business. The freedom guaranteed under this Article is not

free of restrictions or limitations. Normally the restrictions can be in

two different forms – one is by way of reasonable restrictions to

which the right is made subject to by the Constitution itself, while

the other would be by virtue of law that may be enacted by the

State. The State is competent to make laws relating to the

professional or technical qualifications necessary for practising any

profession or carrying on of any occupation, trade or business. The

requirement is that such restriction has to be reasonable and must

be as a result of the law enacted by the State. The right to carry on

trade is thus not an absolute right but is a conditional right and is

subject to such restrictions as may be placed. The Rules of 2011

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contemplate certain requirements and restrictions subject to

compliance of which a person can be permitted to be registered as a

manufacturer, stockist or seller of the plastic goods while Section 5

of the Environment Act provides for reasonable restrictions in the

larger public interest and in furtherance to the law enacted by the

Parliament. Therefore, the contention that it is an unreasonable

restriction is not sustainable. These restrictions and/or prohibitions

operate in different fields on distinct basis, leading to varied

consequences.

19. The other contention raised before us is with regard to the

notification of 30th July, 2008 being repugnant to the notified Rules

of 2011. While referring to Article 254 of the Constitution, it is

contended that the notification of 30th July, 2008 is in conflict with

the Rules of 2011 framed by the Central Government. It is

contended that the notification of 30th July, 2008 has been notified

in furtherance to the delegated legislative powers, the same being

repugnant to the Central law and hence the Central law would

prevail and thus, the notification issued by the UT Administration

of Chandigarh would be void.

20. Article 254 of the Constitution comes into play only when the

law framed by the State legislature is repugnant to any law made by

the Parliament which the Parliament is competent to enact or to

any provision of an existing law with respect to any of the matters

enumerated in the Concurrent List, then unless the State law is

saved in terms of Article 254(2), the law made by the State shall, to

the extent of repugnancy, be void. List III of the Seventh Schedule

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to the Constitution specifies the fields falling under the Concurrent

List. It does not contain any entry with regard to environment

though by way of the 42nd Amendment Act, which came into effect

from 3rd January, 1977, ‘Forests’ and ‘Protection of wild animals

and birds’ were added under Entries No.17A and 17B respectively.

The Concurrent List does not contain any residuary power of the

Parliament. Similarly, List I (Union List) of the Seventh Schedule

also does not contain any specific entry in relation to environment.

However, there is the residuary power in terms of Entry 97 of the

said List which empowers the Union Parliament to enact laws on

any other matter not enumerated in List II or List III including any

tax not mentioned in either of these Lists. List II (State List) also

does not contain any specific entry in relation to environment but

for Entry 6 of the said List which deals with public health and

sanitation; hospitals and dispensaries. It may be useful to notice

here that in terms of Article 243W of the Constitution relating to

powers, authority and responsibilities of Municipalities, etc. under

Entry 6 of the 12th Schedule to the Constitution, subjects of public

health, sanitation, conservancy and solid waste management are

specified. Article 243W of the Constitution deals with the powers,

authority and responsibilities of municipalities and subject to the

provisions of the Constitution, the legislature of a State, may by

law, endow the municipalities with such powers and authority as

may be necessary to enable them to perform the functions and

responsibilities in relation to the matters specified in the 12th

Schedule.

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21. Keeping in view the importance of the environment, it includes

air, water, soil, forests, even plants, human beings, micro-

organisms, other living creatures, etc. The fields that cover such

legislation would be Entry 97 appearing in List I of the Seventh

Schedule. All the relevant laws in relation to environment i.e. air,

water, noise and environmental protection, have been enacted by

the Union Parliament. As per the law stated by a Constitution

Bench of the Supreme Court in the case of Rajiv Sarin and Another

v. State of Uttarakhand and Others [2011 (8) SCC 708], the Court

stated as under:

“34. It is by now a well-established rule of interpretation that the entries in the list being fields of legislation must receive liberal construction inspired by a broad and generous spirit and not a narrow or pedantic approach. It held that each general word should extend to all ancillary and subsidiary matters which can fairly and reasonably be comprehended within it. In those decisions it was also reiterated that there shall always be a presumption of constitutionality in favour of a statute and while construing such statute every legally permissible effort should be made to keep the statute

within the competence of the State Legislature.

35. As and when there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it would also be necessary for the courts to examine the true nature and character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the

respective legislature under the constitutional scheme.”

22. Further, it is also a settled rule of law that courts would

normally lean in favour of validity of an Act. It would attempt to

harmonise two conflicting laws in preference to declaring a law void

on account of repugnancy. Of course, where all the ingredients of

repugnancy are satisfied stricto sensu and there is no other

23

alternative open to the court but to declare that repugnant portion

of the law void or invalid, then alone the court may exercise such

discretion. This brings us to analyse what are the essentials of a

law being declared void on account of repugnancy under the

Constitution. The Supreme Court of India, in the case of Rajiv

Sarin and Another v. State of Uttarakhand and Others (supra), while

referring to the judgment of the Court in the case of M. Karunanidhi

v. Union of India [1979 (3) SCC 431] spelt out the conditions which

are required to be satisfied before an Act could fall on the ground of

repugnancy within the rigours of Article 254 of the Constitution.

The Court held as under:

“45. For repugnancy under Article 254 of the Constitution, there is a twin requirement, which is to be fulfilled: firstly, there has to be a "repugnancy" between a Central and State Act; and secondly, the Presidential assent has to be held as being non-existent. The test for determining such repugnancy is indeed to find out the dominant intention of the both legislations and whether such dominant intentions of both the legislations are alike or different. To put it simply, a provision in one legislation in order to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial or incidental coverage of the same area in a different context and to achieve a different purpose does not attract the doctrine of repugnancy. In nutshell, in order to attract the doctrine of repugnancy, both the legislations must be substantially on the same subject.

46. Repugnancy in the context of Article 254 of the Constitution is understood as requiring the fulfillment of a

"Triple test" reiterated by the Constitutional Bench in M. Karunanidhi v. Union of India (1979) 3 SCC 431 @ page 443-444, which reads as follows:

“24. It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:

24

1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.”

40. In other words, the two legislations must cover the same field. This has to be examined by a reference to the doctrine of pith and substance.”

23. If we apply the doctrine of pith and substance to the present

case, it is evident that firstly the two notifications, viz. the

notification issued by UT Chandigarh dated 30th July, 2008 and the

Rules of 2011 do not cover exactly the same field and also their

substance and spirit is quite distinct and different. Not only this,

the very object to be achieved under these two notifications is

discernible from the very basis on which such notifications have

been issued. The notification of 30th July, 2008 just deals with the

banning of manufacture, storage, sale and use of plastic carry bags

in the interest of the environment while the Rules of 2011 are

general in their nature and permit the carrying on of a business of

manufacturing, storing and selling of various plastic and polythene

items and the conditions which are required to be satisfied before

commencement and continuation of such business. We are unable

to see any conflict or inconsistency between the two notifications,

much less a clear and direct inconsistency between the two. As

already indicated, these two notifications are operating in different

fields with different objects and implications.

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24. Even, for the sake of argument, we assume that there is some

inconsistency between the two notifications, then it further has to

be satisfied that the inconsistency is absolutely irreconcilable and it

is impossible to obey one without disobeying the other. None of

these ingredients are satisfied in the present case. They can safely

be harmonised and construed together and in fact permitted to

operate in their respective fields without causing any conflict or

contradiction. One regulates the conduct of the business which has

to be performed in a licensed manner within the limitations

imposed by the regulations while the other is a preventive or

prohibitory direction in the interest of the environment and the

public at large. One deals with the private business interest while

the other with larger public interest. The Rules of 2011 can

continue to operate for manufacture, sale and usage of other

plastic/polythene items except for polythene carry bags banned

under the notification of 30th July, 2008.

25. Now we may examine another aspect of this case which is

most fundamental as to whether the provisions of Article 254 of the

Constitution are at all attracted in the present case. We have

already indicated that there is no entry in either of the Lists which

specifically deals with the subject of environment per se. All the

legislations on environment have been enacted by the Union

Parliament, obviously with the aid of fields specified under Entry

No.97 of List I of the Seventh Schedule. The Environment Act is one

of such legislations which has been enacted by the Union

Parliament. With the powers vested under Section 5 of the

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Environment Act and as delegated vide notification of 1992, the UT

Administration has exercised its power and issued the notification

dated 30th July, 2008 banning the manufacture, sale, storage and

use etc. of plastic polythene carry bags. Thus, both these

notifications have been issued by and under the Union law and in

furtherance to the powers delegated by the Central Government. It

neither falls in the Concurrent List nor is it in conflict with one of

the subjects stated in the fields of List II i.e. within the competence

of the State Government. Article 254 can operate only when the

subject relates to the fields specified in the Concurrent List and the

State law is in conflict with the law enacted by the Union

Parliament. The other situation is where the provision of a law

made by the Legislature of a State is repugnant to any provision of

law made by the Parliament, which the Parliament is competent to

enact. Even these two situations of repugnancy are subject to the

limitations of Article 254(2). However, it is apparent that either of

these two situations do not exist in the present case.

26. For the above reasoning and in view of the law settled by the

Supreme Court supra, the argument of the notification dated 30th

July, 2008 being repugnant to the Rules of 2011 has no merits and

is liable to be rejected.

27. As stated by the Supreme Court in the case of K.T. Plantation

Pvt. Ltd. and Anr. v. State of Karnataka [2011 (9) SCC 1], it was held

that repugnancy between two statutes would arise if there is a

direct conflict between the two provisions of law made by the

Parliament and the law made by the State legislature occupying the

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same field and covering the same subject matter. The Supreme

Court further held:

“ When the repugnancy between the Central and State Legislations is pleaded, we have to first examine whether the two legislations cover or relate to the same subject matter. The test for determining the same is to find out the dominant intention of the two legislations and if the dominant intention of the two legislations is different, they cover different subject matter then merely because the two legislations refer to some allied or cognate subjects, they do not cover the same field. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). In other words, both the legislations must be substantially on the same subject to attract

Article 254.”

28. The other contention raised on behalf of the applicants is that

the notification dated 30th July, 2008 stands impliedly over-ruled by

the notification of the Rules of 2011. In this regard, the learned

counsel has placed reliance upon Section 24 of the General Clauses

Act, 1897. In order to deal with this argument, we may refer to the

judgment of the Supreme Court in the case of State of Madhya

Pradesh v. Kedia Leather & Liquor & Ors. [2003 (7) SCC 389] where

the Court stated the principles leading to repeal of a statute or a

provision by implication and the factors which are required to be

considered or questions that are required to be decided by the

Court. The Court held as under:

“13. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provisions, the intention

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is clear not to repeal the existing legislation. (See: Municipal Council Palai through the Commissioner of Municipal Council, Palai v. T.J. Joseph:[1964]2SCR87, Northern India Caterers (Private) Ltd. and Anr. v. State of Punjab and Anr. : [1967]3SCR399 , Municipal Corporation of Delhi v. Shiv Shanker : 1971CriLJ680 and Ratan Lal Adukia and Anr. v. Union of India: AIR1990SC104 . When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (Personal vel rei) est exclusion alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v. Bradley (1878) 3 AC 944. The continuance of existing legislation, in the absence of an express provision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. (See: A.G. v. Moore (1878) 3 Ex. D 276, Ratanlal's case (supra) and R.S. Raghunath v. State of Karnataka and Anr. : AIR1992SC81.

14. The necessary questions to be asked are:

(1) Whether there is direct conflict between the two provisions.

(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;

(3) Whether the two laws occupy the same field.

(See: Pt. Rishikesh and Anr. v. Salma Begum (Smt.) : [1995]3SCR1062 , and Shri A.B. Krishna and Ors. v. The State of Karnataka and Ors. : [1998]1SCR157

15. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does not more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, "unless two Act are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together." (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re: Barry (1936) Ch. 274. To determine whether a later

29

statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The area of operation in the Code and the pollution laws in question are different with wholly different aims and objects; and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side.”

29. The Rules of 2011 were framed in supersession of the

recycled Plastic Manufacture, Sale and Usage Rules, 1999. The

framers of the Rules did not refer to the directions or the

notifications issued by the competent authority in terms of

Section 5 of the Environment Act. In fact, even while superseding

the Rules of 1999, it protected the things done or omitted to be

done before such supersession. The effect of these Rules was

prospective over-ruling of the 1999 Rules. It is either by

implication or otherwise and cannot be extended to a notification

issued under Section 5 of the Environment Act, which has been

enacted for a different purpose and object. If we consider the

present case in light of the questions which, as per the Supreme

Court, needed to be answered while considering the question of

implied over-ruling, then all the questions would have to be

answered in the negative. As already noticed, there is no direct

conflict between the two notifications. The Legislature did not lay

down any exhaustive code on the subject-matter and both the

notifications do not occupy the same field. Once these questions

are answered in the negative, the question of implied over-ruling

would hardly arise in the present case. Reliance on Section 24 of

the General Clauses Act is also irrelevant in the facts of the

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present case. Firstly, there is no direct or implied over-ruling of

the notification dated 30th July, 2008. Secondly, there is no

inconsistency between the two notifications. The implied over-

ruling can come into play only when it is so expressly stated or it

is an inevitable inference from the language of the relevant

provision. The earlier enactment should inevitably be in conflict

with the subsequent law to the extent that one could not operate

in face of the other. The Courts have even held that if the two

provisions or laws concerned may be read together and some

application may be made of the words in the earlier Act, a repeal

will not be inferred. In fact, there is no repealing provision in the

Rules of 2011. The reference to supersession of 1999 Rules is only

in the preamble of the Rules. Thus, there is no direct or implied

intention of the Legislature to render the laws or notifications

ineffective, much less invalid. Thus, this argument raised by the

applicants also has no substance.

30. The last argument raised before us by the applicants is that

the ban is discriminatory and arbitrary on the following two

counts:

(a) The ban has been imposed only on manufacture, sale,

storage and utilisation of ‘polythene carry bags’ while plastic

polythene products have not been banned.

(b) The ban has been imposed only in the UT of Chandigarh

vide the notification dated 30th July, 2008 while no such

ban has been imposed or is in force in the adjoining

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districts of Punjab and Haryana, which are practically part

of UT, Chandigarh.

31. The notification dated 30th July, 2008, of course, imposes a

ban only on polythene carry bags and not on other packaging

plastic/polythene material like plastic rolls and all kinds of

industrial and food packaging material. The order banning the

manufacture, storage, sale, etc. of polythene carry bags is based

upon rational studies undertaken by the expert bodies. The

experience of the Government, is even obvious as the UT

Administration of Chandigarh felt it impossible to manage the

environmental hazards arising from littering of these plastic carry

bags and when its efforts in that behalf had failed, it invited

objections from all concerned to the draft notification dated 6th

December, 2005. Upon due consideration, the authorities had

taken a view putting a partial restriction. This would not render it

discriminatory inasmuch as even the applicants are carrying on

their business in all other fields of plastic manufacturing, sale, etc.

except to the extent of polythene carry bags. A reasonable

restriction can be imposed wholly or partially. The fact that it has

been imposed partially would not render the notification bad in law

on the ground of discrimination.

32. Furthermore, there is a direct nexus between the object

sought to be achieved by issuance of the notification and the object

sought to be achieved under the provisions of the Environment Act.

The intention is to stop the menace of littering of plastic carry bags

everywhere causing blockage of drains, animal deaths thereby

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leading to environmental pollution and degradation and causing

environmental hazards. The larger public purpose and interest is

sought to be achieved by issuance of this notification in comparison

to the small economic and business interests of the applicants or

persons placed like them. Thus, the private interest must give in to

the public interest or the greater good of the society. It is a matter of

common knowledge of which the Tribunal can even take a judicial

notice, that the plastic carry bags are thrown everywhere

indiscriminately and they result in serious environmental hazards.

This affects not only public health but also public conveniences.

The restriction imposed thus is neither unreasonable nor can it be

said that it has no nexus to the object sought to be achieved by the

provisions of the Environment Act.

33. Many countries have largely replaced the use of plastic bags

by either switching over to re-usable bags and/or ‘biodegradable’

and/or ‘compostable’ bags. In our country, share of plastic waste in

total municipal solid waste has risen from around half per cent in

1996 to over 9 per cent in 2005. It is reported that almost half of

this waste comprises of used plastic bags and packaging material.

The environmental consequences of such plastic waste in solid

waste are well known as it takes hundreds of years to degrade and

fill up landfill sites. Plastic litter can also lead to clogged drains,

which result in sanitation, flooding and sewage problems. In

addition, plastic bags can harm animals through ingestion and the

improper incineration of plastic bags pollutes the air and releases

toxic substances. These concerns have caused governments across

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the world, including the authorities in India, to introduce legislation

to limit the use of plastic bags (SANDEE working paper No. 65-11).

They have used a variety of regulatory instruments for this purpose

which include the mandatory pricing of plastic bags, explicit levies

on each bag, taxes at the manufacturing level, discounts on the use

of ‘own bags’, awareness campaigns, command and control

approaches and, in some cases, a total ban on the use of plastic

bags. The evidence on the effectiveness of such policies world over

is not very promising. For example, plastic bag retail levies in

Ireland have resulted in a dramatic fall in the demand for plastic

bags, and an environmental levy at the point of manufacturing in

Denmark has been similarly effective.

34. We cannot find any fault in the issuance of the notification

dated 30th July, 2008 by the Administrator, UT Chandigarh, on the

ground that the States of Punjab and Haryana have not issued

similar notifications. The Chandigarh Administration has no

administrative or legislative control over the States of Punjab and

Haryana. It is for those States to issue such notifications in that

behalf. However, we certainly would require the Chief Secretary of

both the States of Punjab and Haryana respectively to consider this

aspect and place such restrictions, as they may deem fit and proper

to help the cause of environment. Undoubtedly, places like S.A.S.

Nagar and Panchkula have become part of the city of Chandigarh

and the Administration of these towns/States would be well advised

to promulgate such law to bring it in uniformity with the

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notification issued by the Administration of UT Chandigarh to serve

the larger public interest.

35. Further in view of our above discussion, we also consider it

appropriate to direct the authorities concerned in all the States to

explore the possibility of introducing use of bio-degradable or

compostable plastic bags as opposed to polythene plastic bags of

any thickness.

36. For the reasons afore-recorded, we find no legal or

Constitutional infirmity in the notification dated 30th July, 2008

issued by the Chandigarh Administration. Rather, this is a step

towards better environmental administration and in the larger

public interest. Therefore, we find these applications without any

merit and dismiss the same; however, without any order as to costs.

Justice Swatanter Kumar

Chairperson

Justice U.D. Salvi Judicial Member

D.K. Agrawal Expert Member

P.S. Rao Expert Member

Ranjan Chatterjee Expert Member

New Delhi August 8, 2013