WP (C) No.883/2009 Page 1 of 37 * HIGH COURT OF DELHI : NEW DELHI + Writ Petition (Civil) No. 883 of 2009 & CM 4355/2009 Judgment reserved on: May 21, 2009 % Judgment delivered on: July 14, 2009 1. All India Plastic Industries Association through its Secretary Shri Ajay Gupta S/o Shri R.N. Gupta Aged about 40 years having its Head Office at 203, Hansa Tower 25, Central Market Ashok Vihar, Phase-1 Delhi – 110 052 2. Mr. Bhupesh Ralli Aged about 37 years S/o Shri J.P. Ralli Gupta Plastic Industries 36, Sandesh Vihar Pitampura, Delhi 3. Mr. Radhey Shyam Gupta Aged about 64 years S/o late Shri O.P. Gupta Gupta Plastic Industries 36, Sandesh Vihar Pitampura, Delhi …Petitioners Through Mr. Sandeep Sethi, Sr. Advocate with Mr. Sidharth Singhal and Mr. Nikhil Bhalla, Advocates Versus WP (C) No.883/2009 Page 2 of 37 Government of NCT of Delhi Department of Forests & Wildlife 2nd Floor, „A‟ Block, Vikas Bhawan New Delhi …Respondent Through Mr. Parag P. Tripathi, ASG with Ms. Ruchi Sindhwani, Ms. Akanksha Sharma and Mr. Amey Nargolkar, Advocates Mr. Arvind Sah, Advocate for the Intervenor in CM 4355/2009 Coram: HON'BLE MR. JUSTICE MADAN B. LOKUR HON'BLE MR. JUSTICE A.K. PATHAK 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MADAN B. LOKUR, J. Three questions arise for our consideration in this case. Firstly, on the preliminary submission of the learned Additional Solicitor General – whether the writ petition filed by the Petitioners should at all be entertained in view of the principles analogous to the principles of res judicata or constructive res judicata since the issues WP (C) No.883/2009 Page 3 of 37 raised in this case are similar to the issues raised in an earlier writ petition. In our opinion, this writ petition ought not to be entertained for the reason canvassed by the learned Additional Solicitor General. Additionally, in this case we are called upon to collaterally decide the correctness of the decision taken in the earlier writ petition, which is not permissible on the facts and in the circumstances narrated herein below. The second question for consideration is whether the principles of natural justice enshrined in Rule 4 of the Environment (Protection) Rules, 1986 have been adhered to by the Respondents while issuing the impugned notification dated 7th January, 2009. In our opinion, the answer to this is in the affirmative, since the spirit of the law and the procedure has been followed, though not necessarily the restrictive letter of the law. No prejudice has been caused to the Petitioners in this respect. The third question is whether on merits, the impugned notification dated 7th January, 2009 is invalid in law. Our answer to this question is in the negative. The background facts One Mr. Vinod Kumar Jain filed a Public Interest Litigation WP (C) No.883/2009 Page 4 of 37 (PIL) in this Court painting a grim picture of the failure by the civic agencies in Delhi to effectively manage solid waste.1 One of the issues raised by Mr. Jain concerned the management of plastic waste, which according to him remains in the environment as it is non-biodegradable. It is said to enter the food chain resulting in health risks. The disposal of plastic waste in streams, canals, water bodies etc. compounds the problem caused to the environment. 2. Apparently, with a view to assist the Court in issuing appropriate directions, the Division Bench hearing the PIL constituted a Committee headed by Justice R.C. Chopra, a retired judge of this Court as its Convener, with the Chairman of the Central Pollution Control Board and the Chairman of the Delhi Pollution Control Committee as its Members. Seven questions were posed for the consideration of the Committee and the Report given by it in respect of each question is as follows: Question: Whether plastic bags are per-se injurious to health or hazardous to the environment? Report: Virgin plastic bags are not per se injurious to health or 1 Vinod Kumar Jain v. Union of India & ors. WP(C) No. 6456/04 decided on 7th August, 2008. WP (C) No.883/2009 Page 5 of 37 hazardous to the environment but recycled/coloured bags are injurious. Therefore, a blanket ban on the use of plastic bags is not called for. Question: Whether degradable/biodegradable plastic bags are an alternative and can be introduced without any difficulty? Report: Biodegradable plastics are in its nascent stage and research work is on for the development of appropriate types of biodegradable plastics. It cannot be said that degradable plastics do not pose any health or environmental hazard. These do not decompose naturally on account of action of micro-organism. Biodegradable plastics however, are made of natural substances and decompose through microbial action. Therefore, biodegradable plastics should be encouraged for the manufacture and use of plastic bags. Question: Whether bags made of other materials can substitute plastic bags and meet the demand? Report: The use of plastic bags cannot be withdrawn or banned completely in Delhi but other alternatives can be encouraged and propagated which may result in reducing the demand/use of plastic bags. The chaos and problem created by the use of plastic bags is primarily because of waste generated by plastic bags which needs efficient handling by the authorities as well as by the Plastic Manufacturers‟ WP (C) No.883/2009 Page 6 of 37 Association. Question: What are the existing laws to regulate the use of plastic bags in Delhi? Report: The Delhi Degradable Plastic Bag (Manufacture, Sale and Usage) and Garbage (Control) Act, 2000 read with the Plastic Manufacturer, Sale and Usage Rules, 1999, as amended from time to time, provides that virgin or recycled plastic bags should be of a thickness not less than 20 microns and of a size not less than 8” x 12”. The thickness of plastic bags should be increased to 40 microns. The existing ban on use of plastic bags in some institutions such as in four/five star hotels, hospitals with 100 beds or more, restaurants with a seating of more than 100 etc. is not effectively enforced. Since the ban in these institutions takes care of a small percentage of plastic bags, the maximum consumption thereof being through main markets, local shopping centres, small shopkeepers and street vendors, the ban should be extended to them also. Question: Whether recycling of the plastic bags waste is a health/ environment hazard? Report: Unsound recycling practices pertaining to plastics are a serious health / environmental hazard and those who violate the provisions of WP (C) No.883/2009 Page 7 of 37 law in this regard should be dealt with very strictly. Question: What are the major health or environmental hazards arising out of the use of plastic bags? Report: The use only of virgin plastic bags which are translucent and of more than 40 microns thickness should be encouraged and this should take care of most of the health hazards particularly since these do not contain any harmful additives and can be easily identified by rag pickers for recycling purposes. Question: What steps can be taken to check the health and environment hazards arising out of use of plastic bags in Delhi? Report: The Committee gave as many as twelve recommendations, but it is not necessary to reproduce all of them for the purposes of this decision. 3. Suffice it to say, the Division Bench hearing the PIL generally accepted the recommendations of the Committee and issued the following directions in its final order dated 7th August, 2008: “i) The respondents Government of NCT of Delhi shall issue a proper notification fixing the minimum thickness of plastic bags at 40 microns in place of 20 microns currently stipulated. ii) The respondents, Government of Delhi, the Pollution WP (C) No.883/2009 Page 8 of 37 Control Committee of Delhi and the civic agencies shall take immediate steps for closure of unlicensed recycling units operating from non-conforming areas by using unsound methods for recycling of plastic bags. iii) Government of India shall expedite the constitution of the committee for verifying protocols for degradable and biodegradable plastics in India if the same has not already been done. iv) Government of NCT of Delhi shall issue an appropriate notification forbidding use of plastic bags in the main markets and local shopping centres apart from hotels, hospitals and malls where use of such bags is already forbidden. v) The other recommendations referred to in the report made by the Committee appointed by this Court and extracted above shall be examined by the Government of NCT of Delhi as also the civic agencies and appropriate actions taken in accordance with law wherever such recommendations are found feasible.” 4. Subsequent to the decision rendered by this Court, the Delhi Government issued advertisements in newspapers discouraging the use of plastic bags and a list of “must do” by consumers, retailers, manufacturers, recyclers, airports, malls, railways, fast food centres etc. Following up on this publicity blitz, the Delhi Government issued a notification dated 7th January, 2009 wherein it was mentioned in clause (2) thereof that the use, sale and storage of all kinds of plastic bags is forbidden in several generally identified places in the National Capital WP (C) No.883/2009 Page 9 of 37 Territory of Delhi. In clause (3) of the notification, it was laid down that in places other than those covered by clause (2), only biodegradable plastic bags could be used. The notification also conferred jurisdiction on several officials to enforce its terms. 5. The notification dated 7th January, 2009 reads as follows: “NOTIFICATION Dated 7th January, 2009 In exercise of the powers conferred by Section 5 of the Environment (Protection) Act, 1986 read with notification No.U-11030/J/91-UTL, dated 10-9-1992 and in compliance of the Hon‟ble High Court of Delhi‟s order dated 7th August, 2008 in WP(C) No.6456 of 2004, the Lieutenant Governor of National Capital Territory of Delhi hereby directs the following: 2. That the use, sale and storage of all kinds of plastic bags shall be forbidden in respect of the following places in the National Capital Territory of Delhi, namely:- (a) Five Star and Four Star Hotels. (b) Hospitals with 100 or more beds except for the use of plastic bags as prescribed under Bio Medical Waste (Management and Handling) Rules, 1998. (c) All restaurants and eating places having seating capacity of more than 50 seats. (d) All fruit and vegetable outlets of Mother Dairy. (e) All liquor vends. WP (C) No.883/2009 Page 10 of 37 (f) All shopping Malls. (g) All shops in main markets and local shopping centres. (h) All retail and wholesale outlets of Branded chain of outlets selling different consumer products including fruits and vegetables. 3. In place other than the aforesaid places and as observed by the Hon‟ble High Court of Delhi only Bio- degradable plastic bags shall be used. The following officers shall implement these orders in their respective jurisdiction namely:- 1. Member Secretary, Delhi Pollution Control Committee and its staff. 2. Director Environment, and staff of Environment Dept. Govt. of Delhi. 3. Additional Divisional Magistrates in their respective district. 4. Sub-Divisional Magistrates in their respective jurisdiction. 5. Environmental Engineers, Delhi Pollution Control Committee in their respective jurisdiction. 6. Asstt. Commissioner (FL), Municipal Corporation of Delhi. 7. Food and Supply Officers, in their respective jurisdiction. 8. Medical Officer Health, NDMC. 9. Director Health Services, Government of National Capital Territory of Delhi. 10. Municipal Health Officer, MCD. 11. Food Inspectors of PFA Department, Government of National Capital Territory of Delhi. WP (C) No.883/2009 Page 11 of 37 4. Member Secretary, Delhi Pollution Control Committee shall act as the co-ordinator to implement the above orders. The Chairman and Member Secretary of the Delhi Pollution Control Committee are authorized to lodge the complaint under Section 19 of the Environment (Protection) Act, 1986 vide notification No.S.O.394(E) dated 16-4-1987 as further amended vide notification No.S.O.624(E) dated 3-9-1996. 5. This is in supersession of the Government of Delhi‟s earlier notification no.F.8(86)/EA/Env./2005(ii)/486, dated the 2nd June, 2005 and notification No.F.8(86)/EA/Env./2005/450, dated the 25th May, 2006. 6. This notification shall come into force with effect from the day it is notified in the Official Gazette. By Order and in the Name of the Lt. Governor of the National Capital Territory of Delhi, Sd/- (Sushma Jerath) Dy. Secy. No.F.08(86)/EA/Env./2008/9473 Issued by: Government of the National Capital Territory of Delhi Department of Environment and Forest and Wild Life New Delhi.” 6. A perusal of the notification reveals that it has been issued in exercise of powers conferred by Section 5 of the Environment (Protection) Act, 1986 (for short the EPA) read with a Government of India notification (on which there is no dispute) and in compliance with WP (C) No.883/2009 Page 12 of 37 the orders of this Court in the PIL initiated by Mr. Jain. The submissions: 7. Petitioner No.1 claiming to be an all India association of manufacturers of plastic bags and other plastic products filed a writ petition in this Court along with Petitioners No.2 and 3. Petitioner No.1 claims to represent more than 1,500 registered members on an all India basis. Petitioners No. 2 and 3 are said to be manufacturers/storers/users sellers of plastic products. These Petitioners have challenged the notification dated 7th January, 2009 because, it is submitted that the notification has put them under great hardship and their business has come to a total standstill. According to the Petitioners, a total ban on the use of plastics is an arbitrary measure and is not a reasonable restriction either under the provisions of Article 14 or Article 19(1)(g) or Article 301 of the Constitution. 8. There is no dispute that the power to issue the notification is available with the Respondents under Section 5 of the EPA but learned counsel for the Petitioners submitted that this power has to be exercised in accordance with the Environment (Protection) Rules, 1986 (for short WP (C) No.883/2009 Page 13 of 37 the EPR). In this context, it was submitted that the Respondents have not followed the mandatory procedure prescribed under the EPR and, therefore, the notification is not valid. The second submission of learned counsel was that the Petitioners have no difficulty with direction No. (i), (ii), (iii) and (v) above but insofar as direction No. (iv) is concerned, it has been issued by the earlier Division Bench on a factual misconception. For understanding this contention of learned counsel, direction No. (iv) is once again reproduced: “iv) Government of NCT of Delhi shall issue an appropriate notification forbidding use of plastic bags in the main markets and local shopping centres apart from hotels, hospitals and malls where use of such bags is already forbidden.” (emphasis supplied). 9. According to learned counsel for the Petitioners, the use of plastic bags in hotels, hospitals and malls is not forbidden. What is forbidden in these places is the use of non-degradable plastic bags. It is submitted that the conclusion of this Court that “where use of such bags is already forbidden” is partially inaccurate – what is forbidden is the use of non-degradable plastic bags and not all plastic bags. In support of this assertion, reliance is placed upon two notifications dated 2nd June, 2005 and 25th May, 2006 issued by the Government of Delhi WP (C) No.883/2009 Page 14 of 37 which provide that the use of degradable plastic bags shall be compulsory in the following institutions. In other words, the use of non- degradable plastic bags is forbidden in these places, that is – (a) All 4/5 star hotels categorized as such by the Department of Tourism, Government of India, (b) All hospitals having bed strength of 100 beds or more, (c) All restaurants having seating capacity of more than 50 seats, (d) All food and vegetable outlets of Mother Dairy, (e) All liquor vends, and (f) All shopping malls. 10. It was submitted that since the High Court proceeded on a partially incorrect assumption that all plastic bags (both degradable and non-degradable) are forbidden in these institutions, therefore, directing extension of the ban to other institutions/areas of Delhi is erroneous. 11. The learned Additional Solicitor General appearing on behalf of the Respondents refuted the various submissions made by learned counsel for the Petitioners. He also raised a preliminary objection to the effect that the Petitioners were fully represented in the PIL before this Court (through one Mr. O.P. Ratra). They cannot now be permitted to WP (C) No.883/2009 Page 15 of 37 challenge the notification dated 7th January, 2009 which was issued in compliance with the directions given by this Court in the PIL. It is appropriate to first deal with the preliminary objection raised by the learned Additional Solicitor General. Preliminary submission of the Respondents: 12. We find from the record of the PIL that one Mr. O.P. Ratra had moved an intervention application in the PIL. A perusal of that application reveals that Mr. Ratra claims to have been engaged in the development and promotion of applications of plastics since 1965. He says that he has served in various departments of the Government of India as well as in various technical committees etc. He cites his various accomplishments and concludes his application by submitting that plastic bags are technically and environmentally safe and that he is pained to notice that unjustifiable publicity is given against plastic bags in complete variance with the provisions of the law. 13. We also find from the record of the PIL that after this Court rendered its decision, Mr. Ratra filed a review application in the writ petition in which he described himself as a founder member of Plastics WP (C) No.883/2009 Page 16 of 37 Chintak. 14. The learned Additional Solicitor General submitted before us that his instructing counsel made a search on the internet to determine the identity of Plastics Chintak. As a result of that search, some material was collected and that has been placed on record. From these documents, it has come to be known that Mr. Ratra is the Secretary of Plastics Chintak, which is a forum of All India Plastic Industries Association and All India Federation of Plastic Industries. Plastics Chintak is intended to create awareness that plastics are environmentally safe and eco-friendly, that plastic bags are essential and an integral part of our daily life and plastics cannot be banned completely without providing cheap and acceptable alternatives. 15. It may be noted that one of the two constituents of Plastics Chintak is All India Plastic Industries Association, which is Petitioner No.1 in the writ petition that we are concerned with. The address of Plastics Chintak as displayed on the internet is c/o All India Plastic Industries Association, 203, Hansa Tower, 25, Central Market, Ashok Vihar, Phase-I, Delhi and this is the same as the address of Petitioner WP (C) No.883/2009 Page 17 of 37 No.1. The submission of learned Additional Solicitor General in this regard was that although the Petitioners in the case before us may not have directly been parties in the PIL, but they were certainly represented, or at least their point of view was certainly put forth by Mr. Ratra, who participated in the proceedings before the Justice Chopra Committee, intervened in the PIL and also filed a review petition in this Court. It was, therefore, submitted that it is too late in the day for the Petitioners to contend that they were not heard before the abovementioned directions were issued by this Court or that their point of view was not available with the Delhi Government when the notification dated 7th January, 2009 was issued. 16. Learned counsel for the Petitioners did not refute the factual submission of the learned Additional Solicitor General about the identity of Mr. Ratra or his association with Petitioner No.1 or even the connection between Plastics Chintak and Petitioner No. 1. We, therefore, have no option but to proceed on the basis that Mr. Ratra is integrally connected with Plastics Chintak as mentioned by him in the PIL and that Plastics Chintak is a forum which has Petitioner No. 1 as one of its constituents. We must also proceed on the basis that since WP (C) No.883/2009 Page 18 of 37 Petitioner No.1 has an all India reach, the point of view of all plastic manufacturers in India was represented by Mr. Ratra in the PIL. 17. What is the cumulative effect of this? As far as we can see, the entire PIL was heard and decided with the active participation of the plastic industry and manufacturers of plastic. Not only this, their view was also placed before the Justice Chopra Committee, which took into consideration the opinion of the plastic industry and manufacturers of plastic and only then submitted its Report. This Court delivered judgment in the PIL only after hearing all concerned parties, including Mr. Ratra. In essence, therefore, the Petitioners were parties to the PIL and if they had any grievance with the conclusions arrived at by this Court, the only appropriate course available for them would have been to either file a review petition in this Court (which they did through Mr. Ratra), or to prefer a petition for special leave to appeal in the Supreme Court. 18. By filing an independent writ petition, the Petitioners are inviting us to sit in judgment over the decision rendered by another Division Bench of this Court. We simply cannot do this, nor can we, WP (C) No.883/2009 Page 19 of 37 without any valid reason, doubt the conclusions arrived at by a coordinate Bench. 19. In Govt. of A.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262 it was said: “A decision by two Judges has a binding effect on another coordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law.” 20. It might have been a completely different story if we did not agree with the conclusions arrived at by the earlier Division Bench. In that event, we could have referred the matter to a larger Bench, but no such submission was made. 21. In Vijay Laxmi Sadho (Dr) v. Jagdish,(2001) 2 SCC 247 it was said: “As the learned Single Judge was not in agreement with the view expressed in Devilal case [Devilal v. Kinkar Narmada Prasad, Election Petition No. 9 of 1980] it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. … … …. It is well-settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction whether on the basis of “different arguments” or otherwise, on a question of law, it is appropriate that the matter be WP (C) No.883/2009 Page 20 of 37 referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs.” 22. Similarly, in Mahadeolal Kanodia v. Administrator General of West Bengal, (1960) 3 SCR 578 it was said: “Before we part with this appeal, however, it is our duty to refer to one incidental matter. We have noticed with some regret that when the earlier decision of two judges of the same High Court in Deo Rajan’s Case [58 CWN 64] was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it