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. 32979 of 2006(A) ---------------------------------------- PETITIONER(S): ------------------------- 1. ALL KERALA PLASTIC DEALERS ASSOCIATION, MERCHANTS UNION BUILDING, MERCHANTS UNION ROAD, ERNAKULAM, RESPRESENTED BY ITS PRESIDENT. 2. BLUEMAX COMPANY, MARKET ROAD, ERNAKULAM, COCHN-35, REPRESENTED BY ITS PARTNER. 3. CHERUVATHOOR DISTRIBUTORS, JEWS STREET, ERNAKULAM, REPRESENTED BY ITS PROPRIETOR. 4. MILTONE ENTERPRISES, JEWS STREET, ERNAKULAM, REPRESENTED BY ITS PROPRIETOR. 5. THE CEYLON FANCY HOUSE, MARKET ROAD, ERNAKULAM, REPRESENTED BY ITS MANAGING PARTNER. 6. IMMATTY FANCY STORES, JEWS STREET, ERNAKULAM, REPRESENTED BY ITS MANAGING PARTNER. 7. K.V. AGENCIES, BASIN ROAD, ERNAKULAM, REP. BY ITS MANASGING PARTNER. 8. POOJA PLASTICS, POST OFFICE LINK ROAD, BROADWAY, ERNAKULAM, REPRESENTED BY ITS PROPRIETOR. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN, SRI.T.R.SATHEESAN, SMT.DHANYA CHANDRAN. Kss ..2/- ..2... WPC.NO.32979/2006 A RESPONDENT(S): ---------------------------- 1. UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF ENVIRONMENT AND FOREST, CENTRAL SECRETARIAT, NEW DELHI. 2. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. KERALA STATE POLLUTION CONTROL BOARD, PLAMOOD, TRIVANDRUM REP. BY ITS MEMBER SECRETARY. 4.THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM. 5. CORPORATION OF COCHIN, ERNAKULAM, BOAT JETTY, KOCHI - 11, REPRESENTED BY ITS SECRETARY. R1 BY ADVS. SRI. AJITH KRISHNAN, ADDL.CGSC, SRI.P.K.BABU, ADDL.CGSC, SRI.GEORGE JOSEPH, CGC. R2& R4 BY GOVERNMENT PLEADER SRI. I.V. PRAMOD R3 BY ADV SRI. M.K.CHANDRAMOHAN DAS, SC, KSPC BOARD R5 BY ADV. SRI. K.RAMESH BABU, SC, COCHIN CORPN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2008 ALONG WITH WPC NO. 1260 OF 2007 AND CONNECTED CASES, THE COURT ON 11/03/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.32979/2006 A APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.NO.32288/2002 DTD. 17/12/2004. P2: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.A.NO.268/2005 DTD. 29TH MARCH, 2005. P3: COPY OF THE ORDER NO.MOH.8/27777/06 DTD. 25/10/2006 ISSUED BY THE 5TH RESPONDENT. P4: COPY OF THE LETTER DTD. 14/11/2006 ISSUED BY THE 5TH RESPONDENT TO ONE OF THE MERCHANTS. P5: COPY OF THE BROCHURE PUBLISHED BY THE THIRD RESPONDENT IN CONNECTION WITH COLLECT AND DISPOSAL OF WASTE. P6: COPY OF THE BROCHURE PUBLISHED BY THE THIRD RESPONDENT IN CONNECTION WITH COLLECT AND DISPOSAL OF WASTE. P7: COPY OF THE LEAFLET PUBLISHED BY THE THIRUVANANTHAPURAM CORPORATION WITH REGARD TO WASTE DISPOSAL. P8: COPY OF THE OFFICIAL ADVERTISEMENT PUBLISHED BY THE STATE GOVERNMENT WITH REGARD TO USE OF PLASTIC AND DISPOSAL. P9: COPY OF THE BARE FACT ABOUT PLASTICS ISSUED BY THE KERALA POLLUTION CONTROL BOARD. P10: COPY OF THE ADVERTISEMENT ISSUED BY THE GAS AUTHORITY OF INDIA LTD. IN CONNECTION WITH THE WORLD ENVIRONMENT DAY, 2002, RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. ......................................................................... W.P.(C)Nos. 32979 OF 2006-A, 1260 OF 2007-Y, 13759 OF 2008-K, 15307 OF 2008-V & 15784 OF 2008-D ......................................................................... Dated this the 11th day of March, 2011. JUDGMENT “CR” 1. These writ petitions are filed challenging certain orders issued by the Kerala State Pollution Control Board, hereinafter “PCB”, for brevity. The substance of the contentions is that those orders were essentially dictated by the Government of Kerala and that they are in conflict with the Rules framed by the Central Government. Even going by the case of the petitioners, the Central Government is the competent authority to frame and issue rules regulating the manufacture, use, disposal, recycling etc., of plastic carry bags. 2. Petitioners had been enjoying an interlocutory order. 3. Different arguments were addressed before me at different WPC32979/06 & con.cases -: 2 :- stages, including that, there is the need to have a larger look at the issue of mismanagement of plastic waste. In fact, Adv. Alphonse Kannanthanam had argued that different authorities have to be directed to consider alternatives for plastic, for use by shopkeepers. He referred to different authorities and materials to indicate that the menace of plastic is a bane to humanity and also to other inhabitants of the earth, in the form of flora and fauna. He made elaborate reference to the clogging of the water resources, drainage system etc. on account of unregulated, random and careless disposal of plastic by citizens. 4. It needs to be mentioned that plastic is used only by the human beings. With the progression of human history, we call ourselves civil societies. Growth of civilization includes the requirement to grow, recognizing the rights of those who are yet to reach this earth. The coming generations have a heavy stake and the present inhabitants have to manage the environment, having in mind that, we who live today are undoubtedly the ancestors of tomorrow. If the WPC32979/06 & con.cases -: 3 :- present societal conduct of littering is carried on, don't expect to be revered; not even respected; but, rest assured only to be cursed and accused by those who are destined to tread this earth; they who are the innocent toddlers of today and those who are yet in the queue to visit this planet. 5. Illiteracy and lack of information are only two among the reasons for failure in waste management. Information should lead to transformation. People who claim to be well-informed and living in urban and semi-urban societies, even migrating from rural set up, tend to show a trend of exclusive selfishness, even imperiling health and hygiene, as rightly pointed out by Sri. Kannanthanam. The manner in which biodegradable waste is packed by the so- called civilized citizens in non-biodegradable plastic bags, tied up and callously and carelessly left on the street sides and open lanes, is clear indication of not only lack of information, but lack of even the inkling for self preservation. Management of waste, as also the manufacture and use of materials which could ultimately WPC32979/06 & con.cases -: 4 :- turn out as waste, have to be appropriately dealt with. Recycling is an inexcusable requirement. The Local Self Government Institutions, the governmental agencies etc. have, indisputably, a large role to play. But, the largest of the roles to be played, is undoubtedly, by the citizens, individually and collectively. Any arbitrary and anarchic behaviour from the civilized society in the management of waste is deplorable. It is against the common good. This is an issue which could be appropriately dealt with by the Local Self Government Institutions and also various statutory authorities who are involved in administering issues relating to public health, hygiene and other attendant matters. There are different penal provisions. Many of them may, with the passage of time, lose their deterrent value, having regard to the flee bite that the proposed punishments would be. But, if prompt action is taken for preventive action and also for prosecution by law enforcing authorities, obedience could be obtained. It may not be out of context to point out that every public servant, who is duty bound to enforce a law, is bound to do it. The conferment of authority includes the direction of WPC32979/06 & con.cases -: 5 :- law as to the way in which that public servant shall conduct himself, in relation to the exercise of authority in connection with the duty that is reposed on him as the repository of the statutory power in question. If a public servant disobeys such direction of law, it cannot but be taken that he knowingly does so, because it is his duty to know his obligations attendant to his office. In connection with administration of matters relating to public health, hygiene, environment, pollution etc., every public servant conferred with such duty and power would only be acting, knowing well that by his such omission, he would cause injury to public at large meaning thereby, all persons who become the victims of such polluting activities and challenges to public health, hygiene etc. There is no reason why such public servants shall not be treated as offenders, having disobeyed law, with intent to cause injury to any person, which is an offence punishable under Section 166 of the IPC. 6. With the passage of time, Central Government has, through the Ministry of Environment and Forests, issued the Plastic Waste WPC32979/06 & con.cases -: 6 :- (Management and Handling) Rules, 2011, in which, Rule 5 lays down the standards and conditions to be ensured while stocking, distributing, selling and using carry bags and sachets. It contains the clear prohibition that no person can manufacture, stock, distribute or sell any carry bag made of virgin or recycled or compostable plastic, which is less than 40 microns in thickness. Different other regulations are also made. With such rules in place, argument of the petitioners in the writ petitions does not survive. Concededly, the fact situation while the impugned orders were issued has changed. Obviously, therefore, Plastic Waste (Management and Handling) Rules, 2011 will supersede the impugned orders now. Further consideration of the grounds raised in the writ petitions is therefore not necessary. It is however clarified that if the Pollution Control Board intends to insist fixing of the thickness of the plastic carry bags at 50 microns, they would proceed with such a proposal ensuring that there is no conflict, but only conformity with the statutory provisions. This means that the impugned orders would be enforced only in the limits prescribed WPC32979/06 & con.cases -: 7 :- in Rule 5 of the Plastic Waste (Management and Handling) Rules, 2011. This will be without prejudice to the State Pollution Control Board considering the question of enhancement of the thickness of the plastic carry bags by following any procedure in accordance with law. Since no question as to the validity of the Plastic Waste (Management and Handling) Rules, 2011 is being considered in this judgment, at the request of the writ petitioners, it is clarified that this judgment would not by itself impair any challenge to those Rules. These writ petitions are ordered accordingly. No costs. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE. cl-sha -true copy- P.S.to Judge.