IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 11TH MARCH 2011 / 20TH PHALGUNA 1932 WP(C).No. 1260 of 2007(Y) ------------------------------------- PETITIONERS: ---------------------- 1. ALL KERALA PLASTIC DEALERS ASSOCIATION, MERCHANTS UNION BUILDING, MERCHANTS UNION ROAD, ERNAKULAM, REPRESENTED BY ITS PRESIDENT. 2. COASTAL (INDIA) AGENCIES, SUHARA BUILDING, TC.39/1235, CHALAI,TRIVANDRUM-36, REPRESENTED BY ITS PROPRIETOR, A.SAINUDEEN. 3. POPULAR AGENCIES, MUNICIPAL MARKET COMPLEX BUILDING, M.L.ROAD, KOTTAYAM, REPRESENTED BY ITS MANAGING PARTNER, ABY. C.KURUVILA. 4. BLUEMAX COMPANY, MARKET ROAD, ERNAKULAM, COCHIN-35, REPRESENTED BY ITS PARTNER, M.S.M. MUSTHAFA. 5. DAVID AGENCIES, 10/597A, OASIS COMPOUND, M.P.ROAD, KOZHIKODE-673 001, REPRESENTED BY ITS MANAGING PARTNER,EDISON DAVID. 6. SUN AGENCIES, "SURYA", 18/642, SAMOOHAM ROAD, TALI, CALICUT-673 002, REPRESENTED BY ITS PARTNER, RAJESH ISWARLAL. 7. KINJAL PLASTIC, NEAR PRIVATE BUS STAND, GHS ROAD, PATHANAMTHITTA REPRESENTED BY ITS MANAGING PARTHER, SHAIJU K.C. 8. STAR NYLONE, OLD BUS STAND, VADAKARA, KOZHIKODE DISTRICT, REPRESENTED BY ITS PROPRIETOR P.V.THOMAS. 9. NOVY TOTAL PACKAGING, 17/2114, "MEHEK", NEAR TAXI STAND, G.H.ROAD, KOZHIKODE-673 001, REPRESENTED BY ITS MANAGING PARTNER, P.M.C.SHERIFF. W.P.(C). NO.1260/2007-Y: 10. VISWAM TRADERS, KARNAKI AMMAN KOVIL STREET, BIG BAZAR,PALAKKAD-14, REPRESENTD BY ITS PARTNER S.RAVI. 11. IDEAL ENTERPRISES, MAIN ROAD, PUTHENATHANI, MALAPPURAM, REPRESENTED BY ITS PARTNER K.P.ABDUL SALEEM. 12. MILTONE ENTERPRISES, JEWS STREET, ERNAKULAM-682 031, REPRESENTED BY ITS PARTNER. 13. FAS ENTERPRISES, CC.13/24, M.A.ROAD, KOCHI-2, REPRESENTED BY ITS PROPRIETOR. 14. CHERUVATHOOR DISTRIBUTION, 1ST FLOOR, KALLEPURAM CHAMBERS, JEWS STREET, ERNAKULAM REPRESENTED BY ITS PARTNER SHAJAN. 15. REGAL TRADERS, KANNAMKULANGARA, KOORKENCHERY P.O., THRISSUR, REPRESENTED BY ITS PROPRIETOR. 16. SHINE AGENCIES, JAYASREE COMPLEX, NARANGAPURAM, TELLICHERRY-670 101M REPRESENTED BY ITS PARTNER P.M.JAISON. 17. GOLDEN PLASTICS, PARAMBALAM COMPLEX, DOOR NO.XI-174, OPP. NEW BUS STAND, PANDIKKAD ROAD, MANJERI, REPRESENTED BY ITS MANAGING PARTNER, SANTHOSH. 18. KAMAKSHI AGENCIES, COIMBATORE ROAD, PALAKKAD-1, REPRESENTED BY ITS PROPRIETRIX. 19. K.V. AGENCIES, BASIN ROAD, ERNAKULAM, REPRESENTED BY ITS PARTNER. 20. EMPIRE LEATHER WORKS, 41/811, KUTTAN LANE, ARANGATH CROSS ROAD, PULLEPPADY, ERNAKULAM-682 018, REPRESENTED BY ITS PROPRIETOR O.A. MUHAMMED ISMAIL. 21. CEYLON AGENCIES, NEAR KOTHUVALACHAVADI BRIDGE, NO.18/645, CCNB ROAD, ALAPPUZHA-688 001, REPRESENTED BY ITS PARTNER, MUSTAFA. W.P.(C). NO.1260/2007-Y: 22. CEYLON FANCY HOUSE, MARKET ROAD, ERNAKULAM-682 035, REPRESENTED BY ITS MANAGING PARTNER, A.MUHAMMED FAROOK. 23. IMMATTY FANCY STORES, JEWS STREET, ERNAKULAM-682 031, REPRESENTED BY ITS MANAGING PARTNER, C.ABRAHAM PAUL. 24. POOJA PLASTICS, NO.40/2126, P.O. LINK ROAD, BROADWAY, ERNAKULAM-31, REPRESENTED BY ITS PROPRIETOR, GIRIDARILAL. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN, SRI.T.R.SADEESAN, SMT.DHANYA CHANDRAN. RESPONDENTS: ------------------------ 1. UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF ENVIRONMENT OF FOREST, CENTRAL SECRETARIAT, NEW DELHI. 2. THE SECRETARY TO GOVT. OF INDIA, MINISTRY OF URBAN DEVELOPMENT,CENTRAL SECRETARIAT, NEW DELHI. 3. STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVT. OF KERALA, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 4. SECRETARY TO LOCAL SELF GOVERNMENT, GOVT. OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. KERALA STATE POLLUTION CONTROL BOARD, PLAMOOD, TRIVANDRUM, REP. BY ITS MEMBER SECRETARY. 6. THE COMMISSIONER OF COMMERCIAL TAXES, COMMERCIAL TAX DEPARTMENT, THIRUVANANTHAPURAM. 7. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 8. THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM. W.P.(C). NO.1260/2007-Y: 9. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 10. CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 11. CORPORATION OF KOLLAM, KOLLAM, REPRESENTED BY ITS SECRETARY. 12. CORPORATION OF COCHIN, ERNAKULAM, BOAT JETTY, KOCHI-11, REPRESENTED BY ITS SECRETARY. 13. CORPORATION OF THRISSUR, THRISSUR, REPRESENTED BY ITS SECRETARY. 14. CORPORATION OF KOZHIKODE, KOZHIKODE, REPRESENTED BY ITS SECRETARY. 15. INDIAN CENTRE FOR PLASTICS IN THE ENVIRONMENT, MUMBAI, KUSHESH MANSION, 2ND FLOOR, 22, CAWASJI PATER STREET AND 48/54, JANMABHOOMI MARG (GHOGA STREET), FORT, MUMBAI-400 001. R1 & R2 BY SRI.GEORGE JOSEPH, ADDL.CGSC, SRI.T.P.SAJID, ADDL.CGSC, R3,R4, R6,R7,R8 & R9 BY GOVT. PLEADER SRI. I.V. PRAMOD, R5 BY SRI.M.K.CHANDRA MOHANDAS,S.C, R13 BY ADVS. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATION, SRI.LELLULAL T.G.THUNDATHIL, SRI.K.A.SREEJITH, R15 BY ADVS. SRI.SATHISH NINAN, SRI.SANTHOSH MATHEW. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2008, ALONG WITH W.P.(C). NO.32979 OF 2006 AND CONNECTED CASES, THE COURT ON 11/03/2011 DELIVERED THE FOLLOWING: W.P.(C). NO.1260/2007-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO.32288/2002 DTD. 17/12/2004. EXT.P.2: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A. NO. 268/2005 DTD 29TH MARCH 2005. EXT.P.3: COPY OF THE HEARING NOTICE NO.PCB/L/3120/2005 DTD. 06/10/2006 ISSUED BY THE R.5. EXT.P.4: COPY OF THE EXTRACT OF THE RECYCLED PLASTICS (MANUFACTURE AND USAGE) RULES, 1999 ISSUED BY THE R.1. EXT.P.5: COPY OF THE EXTRACT OF 'RECYCLED PLASTICS, MANUFACTURE AND USAGE (AMENDMENT) RULES, 2003 ISSUED BY THE R.1. EXT.P.6: COPY OF THE NOTIFICATION NO. PCB/L/3120/2005 DTD. 16TH DECEMBER, 2006 ISSUED BY R.5. EXT.P.7: COPY OF THE BROCHURE PUBLISHED BY THE R.5. IN THE MATTER OF COLLECTION AND DISPOSAL OF WASTE. EXT.P.8: COPY OF THE OFFICIAL ADVERTISEMENT PUBLISHED BY THE R.3. WITH REGARD TO THICKNESS, USE OF PLASTIC AND DISPOSAL. EXT.P.9: COPY OF THE BARE FACTS ABOUT PLASTICS ISSUED BY THE KERALA POLLUTION CONTROL BOARD. EXT.P.10; COPY OF THE ADVERTISEMENT ISSUED BY THE GAS AUTHORITY OF INDIA LTD. IN CONNECTION WITH THE WORLD ENVIRONMENT DAY, 2002. EXT.P.11: COPY OF THE EXTRACT OF THE MUNICIPAL SOLID WASTE (PROHIBITON OF LITTERING AND REGULATION OF SEGREGATION STORAGE, DELIVERY AND COLLECTION) RULES, 2006 ISSUED BY THE MUNICIPAL CORPORATION OF GREATER MUMBAI. EXT.P.12: COPY OF THE SLIDES PRESENTED TO THE R.1. ON 21ST NOVEMBER, 2005 BY THE R.10 IN THEIR PUBLICATION ECO-ECHOES. EXT.P.13: COPY OF THE ARGUMENT NOTE DTD. 16/10/06 SUBMITTED BY THE COUNSEL FOR THE PETITIONERS BEFORE THE R.5. EXT.P.14: COPY OF THE MINUTES OF THE HEARING HELD ON 17/10/06. EXT.P.15: COPY OF THE NOTE NO.22/07/P.S/M.(L.S.) DTD. 01/02/07 OF THE PRIVATE SECRETARY OF HON'BLE MINISTER FOR URBAN AFFAIRS. EXT.P.16: COPY OF THE DECISION VIDE COVERING LETTER DTD. 07/02/2007 VIDE NO.1543/H2/07 ISSUED BY THE GOVERNMENT. W.P.(C). NO.1260/2007-Y: EXT.P.17: COPY OF THE ANSWER GIVEN BY THE CHAIRMAN IN MALAYALA MANORAMA DAILY DTD. 22/03/07. EXHIBITS P.15, P.16 & P.17 IN I.A. NO.1533/2007: EXT.P.15: COPY OF THE NEWS REPORT IN MALAYALA MANORAMA DAILY DTD. 14/12/06. EXT.P.16: COPY OF THE NEWS REPORT IN MALAYALA MANORAMA DAILY DTD. 20/01/07. EXT.P.17: COPY OF THE NEWS REPORT IN MALAYALA MANORAMA DAILY DTD. 30/01/07. EXT.P.18: COPY OF THE LETTER NO. H 3926/07 DTD. 29/03/07 ISSUED BY THE R.8. RESPONDENTS' EXHIBITS & ANNEXURES: EXT.R5.A: COPY OF THE LIST OF PARTICIPANTS. EXT.R5.B: COPY OF THE MINUTES OF HEARING DTD. 17/10/2006. EXT.R5.C: COPY OF THE GOVERNMENT CIRCULAR NO.14495/G3/02/LSGD DTD. 07/10/2003. EXT.R5.D: COPY OF THE NOTIFICATION NO.S.O.NO.152(E) DTD. 10/02/1988. EXT.R5.E: COPY OF THE NOTIFICATION NO.S.O.NO.327(E) DTD. 10/04/2001. ANNEXURE R1.A: COPY OF THE JUSTICE CHOPRA COMMITTEE REPORT ON PLASTIC WASTE MANAGEMENT. ANNEXURE R1.B: COPY OF THE JUDGMENT DTD. 07/08/2008 IN W.P.(C).NO.6456/2004 (VINOD KUMAR JAIN VS. UNION OF INDIA AND ANOTHER) OF THE HON'BLE HIGH COURT OF DELHI. ANNEXURE-R.15(1): COPY OF THE BRIEF WRITE UP ABOUT THE INDIAN CENTRE FOR PLASTICS IN THE ENVIRONMENT (ICPE). //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.1260 OF 2007 AND W.P(C).Nos.13759, 15307 & 15784 OF 2008 ------------------------------------------- Dated this the 4th day of July, 2008 O R D E R In these writ petition, the earliest among which was filed in January, 2007, the Government of India, through the Ministry of Environment and Forest and the Ministry of Urban Development are parties. However, as of now, those authorities have not come on record with any specific view touching a very crucial subject of importance. 2. Going by the relevant rules and notifications issued by the Government of India, the minimum thickness of plastic carry bags, containers and packing materials has to be 20 microns. The Government of Kerala has taken a policy decision that the minimum thickness should be fixed as 50 microns. This was followed by a decision by the Kerala State Pollution Control Board, fixing it at 50 microns. That issue came up before this Court. It was found that the State Government's policy decision WPC.1260/07 & con. cases Page numbers cannot have any impact and cannot be treated as a dictation to the Pollution Control Board to fix the minimum permissible thickness of plastic. The parties were again heard by the Pollution Control Board and a revised decision was rendered. The hearing, for which notice was issued, was based on the tentative decision to fix the minimum thickness as 30 microns, while the ultimate decision after the hearing, came out with a ban of plastic below 50 microns. In W.P(C).No.1260/07, an interim order was issued, whereby, the parties stand governed as of now, that the minimum thickness of plastic shall be 30 microns. Thereafter, the Pollution Control Board issued a further notice of public hearing for fixing the minimum thickness as 50 microns and have ultimately came out with the decision of fixing the minimum thickness as 50 microns. That is also under challenge in the different writ petitions. 3. Some of the basic issues projected, apart from the arguments based on principles of administrative law, are that there had been no scientific evaluation by the Kerala State WPC.1260/07 & con. cases Page numbers Pollution Control Board as is required of the fact situation and the decision arrived at is scientifically, wholly irrational and does not go with the national bench mark where there should have some sort of uniformity. It is also pointed out that the overwhelming materials on record, including the materials placed by the additional 8th respondent in W.P(C).13759/08, show that the mere prescription of certain bench marks of thickness would be insufficient and the real answer would be to address on different issues touching the environmental impact of plastic and any redressal procedure that could be taken up in a holistic manner. To resolve the aforesaid and to come to some meaningful decision while finally disposing of these matters, the views of the Central government through the Ministry of Environment and Forest and the Ministry of Urban Development and other relevant ministries, as may be found necessary, is absolutely essential. Under the aforesaid circumstances, the competent authority in the Ministry of Environment and Forest and the competent authority in the Ministry of Urban Development in the Central Government will place specific WPC.1260/07 & con. cases Page numbers pleadings touching the aforesaid and also place any further materials which they feel appropriate to bring to the attention of this Court. Let this be done within an outer limit of three weeks. The interim order will continue for a period of four weeks. Post after three weeks. H/o. Copy to ASG also. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.4/7. WPC.1260/07 & con. cases Page numbers THOTTATHIL B.RADHAKRISHNAN, J ------------------------------------------- W.P(C).No.1260 OF 2007 ------------------------------------------- Dated this the 8th day of February, 2007 O R D E R The Government of India, through the Ministry of Environment and Forests, issued Ext.P4 notification in exercise of power conferred by Clause (viii) of sub-section (2) of Section 3 read with section 25 of the Environment (Protection) Act, 1986, invoking the Recycled Plastics Manufacture and Usage Rules, 1999. It takes care of the storing, carrying, disposing and packing of foodstuffs in recycled plastic carry bags and containers and also virgin plastics and the vending of such packing material. Rule 8 thereof provides that the minimum thickness of carry bags made of virgin plastics or recycled plastics shall not be less than 20 microns. Going by Rule 3 (a), the prescribed authority for enforcement of the said provision relating to manufacture and recycling shall be the State Pollution Control Board, in so far as State of Kerala is concerned, WPC.1260/07 & con. cases Page numbers the Kerala State Pollution Control Board. The District Collector, Deputy Commissioner etc. are the prescribed authorities for the enforcement of the provisions relating to use, collection, segregation, transportation and disposal, going by clause (b) of Rule 3 of Ext.P4. Identical provisions in the form of Section 31 A of the Air (Prevention and Control of Pollution) Act and Section 33 A of the Water (Pollution and Control of Pollution) Act empower the Pollution Control Board, subject to the said Acts, to exercise powers and issue directions. In purported exercise of such power, the Kerala State Pollution Control Board issued notification No.PCB/TAC/115/97 dated 6.9.2003, whereby the manufacture, transportation, store, sale and use of plastic bags in any form of thickness less than 30 microns and carry bags sized less than 8 x 12 inches (20 x 30 cms.) in the entire State was prohibited with effect from 1.9.2003. The said decision of the Pollution Control Board was challenged before this court on different grounds. By Ext.P1 judgment, learned single Judge upheld the contentions holding that the Government had no power to dictate its views in the matter and the Pollution WPC.1260/07 & con. cases Page numbers Control Board in exercising the statutory power had not given the appropriate persons an opportunity of pre-decisional hearing. Adverting to the powers of the Pollution Control Board under the statutory provisions referred to above, the writ petitions filed by the petitioners and others were allowed as per Ext.P1 judgment. This was primarily because the Pollution Control Board acted on a Government Order and were merely giving effect to the decision of the Government. 2. Ext.P1 judgment fell for consideration before the Division Bench leading to Ext.P2 judgment. The Bench noticed that Ext.P1 judgment, in so far as it held against the decision of the Pollution Control Board, is sustainable, however, that the decision contained in the aforesaid notification dated 6.9.2003 could be treated as a draft notification to the petitioners and other affected persons, who could file their objections and final notification could be published by the Pollution Control Board after considering the objections. WPC.1260/07 & con. cases Page numbers 3. Following Ext.P2 judgment, the petitioners and others were afforded opportunity of pre-decisional hearing and the Pollution Control Board issued the impugned Ext.P6, whereby it specified, among other things, that the minimum thickness of plastic carry bags and containers, including plastic cups, bottles and plastic materials shall be 50 microns. 4. Learned counsel for the petitioners urged that Ext.P6 decision is nothing but one issued acting on Governmental advice and the Pollution Control Board is guilty of having merely acted as a tool to implement the Governmental policy. It is further urged that the pre-decisional hearing was afforded only on the question as to whether the minimum thickness could be fixed at 30 microns and following such a hearing, the decision could not be for maintaining the minimum thickness at 50 microns. It is further urged that the exercise of power has been malafide. WPC.1260/07 & con. cases Page numbers 5. Learned standing counsel for the Pollution Control Board has made available the file leading to the impugned Ext.P6 and has placed on record a counter affidavit. It is urged by him that as stated in the third paragraph of the impugned Ext.P6, at the hearing, “petitioners were agreeable in general to enhancing the thickness of carry bags and containers suitably . . . . . . . . . . .”. On the basis of such statement in Ext.P6, it is urged that the petitioners had made a concession and that they cannot now wriggle out what the Pollution Control Board has done. The Pollution Control Board also takes the stand that the Government of Kerala have also taken a policy decision to maintain the minimum thickness of plastic bags etc. at 50 microns. 6. Learned counsel for the petitioners states that the reference by the Pollution Control Board to the policy decision of the Government is sufficient indication that the Pollution Control Board was, in spite of Exts.P1 and P2 judgments, continuing to exercise their statutory power after taking into WPC.1260/07 & con. cases Page numbers consideration the views of the Government, which is quite impermissible of a statutory authority in terms of administrative jurisprudence. It is further argued that the petitioners had not made any concession, which fact is well reflected by the submissions made before the hearing authority and all that the petitioners could have stated is only that they are agreeable for a general increase in the thickness. 7. At this stage, without going into the question as to whether the Governmental policy had influenced the Pollution Control Board in taking a statutory decision and still further, as to whether the impugned decision is within the statutory parameters, the question of interim relief needs to be considered since this matter is of fair public importance, particularly when the petitioners and others involved in manufacture, storage and sale as also use of the plastic bags could be put to prosecution by the Local Self Government Institutions and such prosecution could lead to different punishments including imposition of penalty. WPC.1260/07 & con. cases Page numbers 8. Ext.P4 rules issued by the Central Government in exercise of power under the statute enjoins, as already noticed in rule 8, that the minimum thickness of the carry bags etc, was not to be less than 20 microns. By Ext.P2 judgment, this Court directed that Ext.P12 in that case, which is the aforesaid notification dated 6.9.2003 is to be treated as a draft notification and that the petitioners and others would be heard in the matter. This, obviously, means that the Pollution Control Board, in giving effect to Ext.P2 judgment, were duty bound to conduct a hearing on the premise that the intention of the Pollution Control Board ultimately was only to order for maintenance of the minimum thickness of the plastic bags etc. at 30 microns since that is the limit stated in the said notification dated 6.9.2003. So much so, at the hearing which led to Ext.P6, prima facie no party could be imputed with knowledge or of liability to show cause or answer any tentative decision of the Pollution Control Board enhancing the thickness beyond 30 microns. Even if the petitioners were agreeable in general to increase in the thickness of the plastic WPC.1260/07 & con. cases Page numbers carry bags as noticed in the third para of Ext.P6, obviously, that could be only from the statutory limit of 20 microns fixed in Rule 8 of Ext.P4 rules. 9. In the aforesaid circumstances, I am satisfied that the petitioners have demonstrated a strong prima facie case to stay the operation of Ext.P6 decision, at least in so far as it fixes the minimum thickness of plastic carry bags, containers etc, above 30 microns. 10. In the result, the operation of the impugned Ext.P6 decision is stayed to the extent it fixes the minimum thickness of plastic carry bags and containers including plastic cups, bottles and other materials above 30 microns. All further clauses in Ext.P6 shall be read accordingly. Any person who would be governed by this order will be entitled to a period of two weeks from now to dispose of all plastic materials which have the thickness of 30 microns and below. WPC.1260/07 & con. cases Page numbers Any counter affidavit and pleadings shall be placed on record within a period of two months. Let the matter be listed after four months. Sd/- THOTTATHIL B.RADHAKRISHNAN Judge kkb.