All Kerala Plastic Dealers Association, Represented by its President v. Union Of India, Rep. By the Secretary to Government of India
2011-03-11
THOTTATHIL B.RADHAKRISHNAN
body2011
DigiLaw.ai
JUDGMENT 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 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 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.
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 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 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.
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 (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 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.
This means that the impugned orders would be enforced only in the limits prescribed 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.