Download pdf - Civil Appellate Jurisdiction Civil Appeal No. of 2017 · PDF fileIN THE SUPREME COURT OF INDIA Civil Appellate Jurisdiction Civil Appeal No. of 2017 (Arising out of the Impugned judgment

IN THE SUPREME COURT OF INDIA

Civil Appellate Jurisdiction

Civil Appeal No. of 2017

(Arising out of the Impugned judgment/ Final order dated

13.01.2017 passed by the National Green Tribunal (South Zone

bench), Chennai in Appeal No. 119 of 2016)

In the matter of:

Karnataka State Plastic Association …..Appellant

VERSUS

The State of Karnataka & Ors. …..Respondents

PAPER BOOK

(For Index kindly see inside)

With

I.A. No. OF 2017

An Application for stay

With

I.A. No. OF 2017

An application for Exemption from filing certified copy

Advocate for the Appellant - Kundan Kr. Mishra

Bar & Bench (www.barandbench.com)

RECORD OF PROCEEDINGS

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.


INDEX

SL.

No.

Particulars Page No.

1. Office Report on Limitation

2. Listing Proforma

3. List of Dates and Events

4. True copy of the impugned Judgment/ Final Order

dated 13.01.2017 passed by the National Green

Tribunal, New Delhi in Appeal No. 119 of 2016.

5. Appeal under Section 22 of the National Green

Tribunal Act 2010, along with affidavit.

6. Appendix of the National Green Tribunal Act, 2010

7. Annexure A-1

The true typed copy of the Environment Protection Act

1986.

8. Annexure A-2

The true typed copy of the Environment Protection

Rules 1986.

9. Annexure A-3

The true typed copy of the notification dated

10.02.1988

10. Annexure A-4

The True copy of the order dated 03.04.2013 passed by

the Supreme Court in Ankur Gutkha case SLP(C) NO

16308/2007

11. Annexure A-5

The true copy of the RTI dated 15.10.2014 and other

RTIs

12. Annexure A-6

The true copy of the draft Notification dated

28.10.2015 issued by the Government of Karnataka.

13. Annexure A-7

The true copy of the objections filed by the appellant

along with the list of enclosures dated 20.11.2015.

14. Annexure A-8

The true copy of the notification dated 11.03.2016 of

the state of Karnataka.


15. Annexure A-9

The true copy of the Plastic Waste Management Rules

2016.

16. Annexure A-10

The true copy of the Solid Waste Management Rules

2016.

17. Annexure A-11

The true copy of the order dated 29.03.2016 passed by

the Honorable High Court of Karnataka in writ Petition

No. 14691of 2016

18. Annexure A-12

The true copy of the Appeal no 119 of 2016 filed

before the NGT South Zone Bench at Chennai.

19. Annexure A-13

The true copy of the judgment dated 15.07.2016 passed

by the Honorable Supreme Court of India in Karuna

society for animal welfare vs Union of India and others

WPC NO 154 of 2011.

20. Annexure A-14

The True copy of the reply filed by the State of

Karnataka on 25.07.2016 in appeal no 119 of 2016

before NGT South Zone Bench Chennai

21. Annexure A-15

The true copy of the reply filed by the respondent no 4

i.e. Ministry of Chemical and fertilizers date

12.07.2016 in appeal no 119 of 2016 before NGT

South Zone Bench Chennai.

22. Annexure A-16

The true copy of the reply filed by the respondent no 5

i.e. CIPET dated19.07.2016 in appeal no 119 of 2016

before NGT South Zone Bench Chennai

23. Annexure A-17

The true typed copy of the written submission filed by

the appellant dated Nil in appeal no 119 of 2016 before

NGT South Zone Bench Chennai

24. Application for the stay

25. An application for Exemption from filing certified copy





In the matter of:


VERSUS


OFFICE REPORT ON LIMITATION

1. The Petition is/ are within time.

2. The Petition is barred by time and there is a delay of __ days

in filing the Civil Appeal/ Special Leave Petition and the

Appeal/ Petition for Condonation of __ days delay has been

filed.

3. There is a delay of ____ days in re-filing the Civil Appeal/

Special Leave Petition and application for Condonation of

_____delay in refilling has been filed.

BRANCH OFFICER

New Delhi

Dated: .03.2017


LISTING PROFORMA


SECTION-

The case pertains to(Please tick/check the correct box):

□ Central Act: (Title) National Green Tribunal Act

2010

□ Section:

□ Central Rule: (Title) NA

□ Rule No(s): NA

□ State Act: (Title) NA

□ Section: NA

□ State Rule: (Title) NA

□ Rule No(s): NA

□ Impugned Interim Order: NA

□ Impugned Final Order/: (Date) 13.01.2017

□ High Court: (Name) National Green Tribunal, Chennai

□ Names of Judge(s): H.M.J. Dr. P. Jyothimani, Judicial

Member

H.M.J. P.S. Rao, Expert Member

□ Tribunal/Authority: National Green Tribunal

1. Nature of matter: Civil

2. (a) Petitioner/appellant No.1: Karnataka State Plastic

Association

(b) E-mail ID: [email protected]

(c) Mobile phone number: 9911545488

3. (a) Respondent : State of Karnataka & Ors.

(b) E-mail ID: NA

(c) Mobile phone number: NA


mailto:[email protected]

4. (a) Main category classification:

(b) Sub classification:

5. Not to be listed before: NA

6. Similar/Pending matter: NA

7. Criminal Matters:

(a) Whether accused/convict has surrendered: □Yes □ No

(b) FIR No. N.A., Date: N.A.

Complaint Case No. N.A

(c) Police Station: N.A.

(d) Sentence Awarded: NA

(e) Sentence Undergone: NA

8. Land Acquisition Matters:

(a) Date of Section 4 notification:NA

(b) Date of Section 6 notification: NA

(c) Date of Section 17 notification: NA

9. Tax Matters: State the tax effect: NA

10. Special Category (first petitioner/appellant only):

□ Senior citizen> 65 years □SC/ST □Woman/child □ Disabled

□Legal Aid case □ In custody N.A.

11.Vehicle Number (in case of Motor Accident Claim matters): N.A

12. Decided cases with citation: N.A.

Date: ___ .03.2017

(KUNDAN KR MISHRA)

Advocate for the Appellant


BRIEF SYNOPSIS AND LIST OF DATES AND EVENTS

That the appellants are seriously aggrieved because National Green

Tribunal(south zone) Chennai bench (hereinafter referred to as NGT)

has failed to exercise its Jurisdiction and thus did not appreciate that

the impugned Notification(dated 11.03.2016 issued by the state of

Karnataka) was issued in the background of and basis of Plastic

waste management Rules 2011 and Solid waste Management Rules

2000 and that the just within a week after that the Central

Government, in supersession of previous Rules, has framed new set

of exhaustive Rules as Plastic Waste Management Rules 2016(

notified on 18.03.2016) and Solid Waste Management Rules

2016(notified on 08.04.2016) in which the Central Government has

framed exhaustive rules for the waste management including

punitive provisions.

That NGT again failed to exercise its jurisdiction and thus did not

appreciate the validity of said impugned notification on ground of

Rationality, Legality and Propriety as it is clear:-

from Paragraph No. 112 (at page no. 79)of impugned judgment

which is extracted as below for ready reference that rather than

considering the rationality and correctness of Impugned Notification

(as it should have done being a tribunal manned by the expert

members and made for looking into the rationality of facts before it

scientifically) and the very ambit of exercise of power of state

government, NGT put the onus upon Union of India to revoke the

power delegated by central Government upon the State.

“112. There is one other relevant aspect which is to be

considered. The Government of India, Ministry of

Chemicals and Fertilizers, Department of Chemicals and

Petro-Chemicals has taken a stand in the reply as elicited

above, that complete ban of plastic is not permissible

unless it is in accordance with law and procedure. If a

Department of the Government of India has taken a

decision that total ban is not permissible under Section 5


of the EP Act or in cases where Government of India

which has delegated its powers to the State Government

under Section 23 of the EP Act, decides to exercise such

power by itself, there is certainly no bar for the

Government of India to take a decision. In fact in the

order of delegation of power given to various States in

the year 1988, as stated above, the Government of India,

has made it very clear that at any appropriate time it will

be open to the Government of India to revoke such

delegation or exercise the power by itself. Therefore,

there are always checks and balances available and even

in respect of a policy decision of the State Government

taken under the delegated power, if the Central

Government is of the view that either there is excess of

the exercise of the powers or the powers are in violation

of Rules, it is always open to the Central Government to

pass appropriate orders under Section 5 of the EP Act

itself.”

The error of NGT is all the more glaring when the R2 i.e. Ministry

of Forest and Environment, UOI and Ministry of Chemical and

Fertilizers, Department of Chemicals and Petro-chemicals has taken

a clear stand as extracted in paragraph no 52 ( page no 34)of the

Judgment the relevant portion of which is extracted as below:----

“52. In the reply filed by the 4th

respondent in Appeal No. 119

of 2016 viz., Department of Chemicals and Petro-Chemicals,

New Delhi a preliminary objection has been made that the

Government of India is committed towards environmental

issues arising out of usage of plastic and therefore formulated

standard through the Bureau of Indian Standards. While

stating that plastic is a versatile material, playing major role

in delivering and sustaining quality, comfort etc. it is

submitted that it also provides safety of modern life. It is

stated that the domestic industry had consumed 11 Million

Tons of plastic during 2013 – 2014 and there are about

40,000 plastic processing units spread throughout India with

an estimated investment of Rs.30,000 Crores and employs

about 3 Million people. It is further stated that the industry

has potential to grow with annual growth rate of 10% in the

next 10 to 20 years time.”

“53. It is also stated that the MoEF & CC has recently notified

PWM Rues 2016 providing long term sustainable solution to


manage plastic waste effectively. The said Rules increase the

minimum thickness of plastic carry bags from 40 to 50

microns and expand the jurisdiction of applicability from

municipal area to rural areas/villages. That apart, the Rules

impose responsibilities both, on producers and generator of

plastic, apart from introducing collection back system by the

producers by Extended Producer Responsibility. The Rules

also introduced collection of Plastic Waste Management Fee

by pre-registration of product etc., and promote use of plastic

waste for road construction as per the Indian Road Congress

Guidelines. It is stated that the plastic are recyclable and

recycling industry is large in the unorganised sector.”

“54. It is the case of the said respondent that Polyethylene

Terephthalate (PET) is safe for packaging of food and

beverages. Further, almost all the PET waste are being

collected and recycled, the PET waste are converted into

granules and used for manufacture of value added products

like fibres, filaments, pillows, mattresses etc. It is also stated

that the FSSAI has provided regulation for packaging and

labelling of food and other eatable items in the Notification

dated 1.8.2011 called Food Safety and Standards (Packaging

and Labelling) Regulation, 2011. The use of PET for

packaging of the food stuff and beverages is approved

internationally as well as by the National Regulatory Body.

The BIS has already prescribed specification for PET for

packaging of beverages. It is the case of the said respondent

that Tetrapack cartons are different from other flexible multi

layered packs and have also received food safety approval in

every country and therefore there is no threat to environment

due to Tetrapak. It is stated that in India in the year 2014

around 5 Billion Tetrapak cartons were sold and more than

30% of the used cartons have been recycled by which raw

materials for various industries like Aluminium are recovered.

Flexible packaging is used to increase shelf life of packed raw,

semi processed or processed food.”

“55. Therefore, according to the fourth respondent there

should not be any direction for imposing almost a blanket ban

on manufacture, supply, sale and use of plastic carry bags,

plastic banners, plastic buntings, flex, plastic tags, plastic

plates, plastic cups, plastic spoons, cling films and plastic

sheets used for spreading on dining table in the State of

Karnataka, if they conform to the relevant

Rules/Guidelines/Standard etc. In effect, it is the case of the

fourth respondent that the plastic materials should be allowed

and the Rules framed by the Government of India regarding


regulation of plastic materials must be scrupulously

followed.”

The NGT further completely failed to consider the affidavit of

CIPET(The 5th

respondent – Central institute of Plastics

Engineering and Technology)refer paragraph no 56 of the impugned

judgment( page no 36)

56. The 5th

respondent – Central institute of Plastics

Engineering and Technology (CIPET) in the reply while

stating that it is a premier National Institute devoted to

academic, technology support services and research and

development for plastic and allied industries in India. It has

got 28 CIPET centres across the country. It is also an ISO

9001 certified organisation and the testing facility are

accredited by the National Accreditation Board for Testing

and Calibration Laboratories (NABL). It is also an

internationally recognised institute. The 5th

respondent agrees

with the contention of the appellant that the plastic is the

material choice for a variety of applications ranging from

consumer oriented products to industrial products by virtue of

its supremacy in terms of cost, performance, balance, easy

mobility, unlimited colourability, design versatility over the

conventional materials like metal, ceramic and wood. It is also

stated that technologies are available for recycling of various

kinds of plastic and the collection and segregation at source is

a vital issue. It is stated that even multilayered plastics/mixed

plastics waste which is beyond separation, can be recycled

into plastic lumbers and the real issue is the collection and

enormous quantity of waste is available for recycling under

one roof to make it economically viable.

57. While it is stated that plastic industry which is categorised

as “green category” PWM Rules, 2016 prescribe authority for

enforcement of strict compliance of the Rules and Regulations

expanding the jurisdiction. The minimum prescribed features

under the PWM Rules 2016 in respect of plastic carry bags

are bound to be used. It is further stated that complete ban of

manufacture, use and sale of plastic carry bags and other

items is against the public police…..”

Notwithstanding such a clear pleadings made by concerned Nodal

agencies of Central Government the conclusion of NGT in

Paragraph no 111( page 78)to the effect extracted below is

unfortunate and nothing but the non-exercise of jurisdiction and

non-application of judicial mind by the NGT:-


“111)xxxxxxxx …Therefore, it is not for this Tribunal to decide the

correctness of the State’s policy especially in the absence of any

perversity. It is also relevant to note that if a particular issue has two

opinion, particularly, as in this case, whether regulation or ban and

if the Government decides either of this without affecting the basic

principles of law like natural justice and giving a reasoning, it is not

for this Tribunal to direct the Government to follow either this option

or the other.” Xxxxxxxxx

and again in paragraph no 112 that “xxxxxx….. If a Department of

the Government of India has taken a decision that total ban is not

permissible under Section 5 of the EP Act or in cases where

Government of India which has delegated its powers to the State

Government under Section 23 of the EP Act, decides to exercise such

power by itself, there is certainly no bar for the Government of India

to take a decision.”

Now arrival of such a conclusion when the Superior law officer of

the UOI argued the case of Central Government in most categorical

way is further showing conclusively that the NGT has failed to

exercise its jurisdiction: the arguments of UOI can be extracted

below( paragraph non 69 at page no 46)

“69. Mr. Su. Srinivasan, learned Assistant Solicitor General of

India appearing for the Government of India would submit that

plastic being a versatile material played a major role in

sustaining quality, comfort and safety of modern life. The ratio of

cost performance attracts all people of low income group to

enjoy the benefit of plastic world- wide with ever increasing

demand of water proof shelter, sanitation etc., The domestic

industry consumed 11 million Tonnes of plastic during 2013 –

2014. There are about 40,000 plastic manufacturers spread

throughout India with an estimated investment of Rs.30,000

Crores, employing 3 Million people. The industry has production

to grow with annual growth rate of more than 10% during the

next 10 to 20 years while stating that use of plastic carry bags is

convenient sine they are not sensitive to moisture etc. The MoEF

& CC has recently notified PWM Rules, 2016 in supersession of

Plastic Waste (Management and Handling) Rules 2011

providing long term and sustainable solution to manage plastic

waste effectively. The said Rules contain a comprehensive sketch

to address various issues involving effective plastic waste

management and as per PWM Rules, 2016 the thickness of

plastic carry bags has been increased to 50 microns thickness

below which it has been prohibited. The said Rues impose

responsibilities on purchasers. generators, municipalities, local


bodies and also manufacturers under extended producer

responsibility. It provides for registration etc., and basically

deals with source segregation and treatment by way of recycling

through organised sector. The Food Safety and Standards

Authority of India (FSSAI), Ministry of Health and Family

Welfare, Government of India has already provided various

regulations for the purpose of packaging for food and other

eatable items and the Government throughFSSAI has issued

various standards of plastic for packaging food and beverage.

Any blanket ban on the manufacture, supply, sale and use of

plastic carry bags, flex etc., by way of direction should be in

conformity with the rules, guidelines and standards.”

Along with these lines of submissions; the submissions and

pleadings of the appellants further brought on record numerous

research materials, study reports of government and non-government

agencies to the attention of NGT( kindly refer the objection filed by

the appellant before the state and the list of annexures at page

no…………) which were completely ignored and not even referred at

any place.

The NGT could not appreciate the another glaring act of

arbitrariness of the state in as much as the stage government issued

notification impugned banning the various plastic products on

11.03.2016 whereas the New Set of Plastic Waste management

Rules 2016 were to be brought into force ( and thus were notified on

18.03.2016) and Solid waste Management Rules 2016( notified on

08.04.2016) and it was well within the knowledge of every one

relating to the trade including the stage agencies that the exhaustive

rules would come for waste management and regulation of industry

yet the state continued with its prejudiced plan of imposing ban on

strength of old Rules i.e. Plastic Waste Management Rules of 2011

and Solid waste Management Rules of 2000.

When such was the case, still the NGT relied upon the affidavit of

the state Government although the same was consisting of nothing

but some bald statements and having no reason at all and thus

without appreciating that that there was no basis/ document/ material

to support the satisfaction of State while issuing the Notification and

that there was no document showing reason/ basis/ reports/ material


filed on record by the State Government and consisting of no

speaking order passed by the state upon the objections submitted by

the appellant and other similarly circumstances persons.

NGT also failed to exercise its Jurisdiction as the NGT has not

addressed the issues the main/ central issue raised by the appellants

very clearly i.e. about the very ambit of power which was delegated

to the State Government U/s 5 of the Environment Protection Act,

1986 (hereinafter referred as EPA 1986) by the Central Government

(paragraph no12, Page 9 and 10) the upshot of which is that i.e.

interalia,…

“That the Section 5 of the EPA1986 DOES NOT empower

state government to issue a Notification of general/ generic

nature or to exercise a rule making power for a whole whole

state and it only gives power to issue a specific direction of a

specific nature against a specific person/specific officer or

specific authority for a specific purpose etc”

and

“Rule 4.4 mandates that the Central Government shall have to

consider the objections and for REASONSTO BE

RECORDED IN WRITING it will have to either confirm or

modify or decide not to issue the proposed direction. But in

any case Central Government has to consider the objections

and pass a reasoned/ speaking/ written order (which has not

been done in the present case). In B.A. Linga Reddy and Ors.

Vs. Karnataka State Transport Authority and Ors. 2015 (4)

SCC 515. Supreme Court held that the rule of reason is

antithesis to arbitrariness in action and is a necessary

concomitant of the Principles of Natural Justice”

and

“(xv) The impugned notification is devoid of any scientific

study and in fact ,is contrary to scientific research. The plastic

i.e., Polyethylene is basically made up of molecule having

NC2 H2 which is a complete inert chemical and are

macromolecules formed by Polymerization with ability to

withstand reasonable amount of heat and pressure and

different plastics are made from different monomers and they

are absolutely harmless and complete inert and more useful

for safety of food and other materials and therefore there is

absolutely no necessity for imposing total ban on manufacture

of plastic carry bags”

and in place of that NGT only looked into the legal issue on a very

narrow basis (paragraph 74 at page no 49) i.e.----


“(1)Whether the appeals are maintainable in the light of the

decision of the Principal Bench in GOODWILL PLASTIC

INDUSTRIES judgment?

(2) Whether the procedure for passing direction under Section

5 of the EP Act and the Rules framed thereunder, have been

violated by the Government of Karnataka and if violated

whether it would vitiate the impugned notification?

(3) To what other relief the appellants/applicant are entitled

to?”

and thus, the NGT completely failed to address the very vital and

main issues involve in the case.

That it appears that the NGT was completely guided by the decision

passed in Goodwill Plastic Industry case by the Principal Bench of

NGT and could not appreciate that the appellants did not raise their

grievances on any of the issues which were decided in the Goodwill

Case and rather made it very clear that the issues raised by them are

completely different from Goodwill case. As clear from Paragraph

83, 84-92 the South zone Bench is looking the entire case through

the Chandigarh Notification and failed to appreciate that the

Judgment of Goodwill case left the substantive Arguments/

submissions unaddressed and in paragraph No. 93 proceeded to

analyze the compliance by the State Authorities of the procedure

prescribed under Rule 4 of the Environment Protection Rules, 1986

(hereinafter referred as EPR 1986) and that too only on the ground

that whether notices have been served to all stake holders or not.

However, completely missed Clause No.3(b) and 4 of Rule 4 which

says

“The proviso to rule 4.3-b makes clear about the

opportunity of being heard to be given to the occupier.

And Rule 4.4 mandates that the Central Government shall

have to consider the objections and for REASONSTO BE

RECORDED IN WRITING it will have to either confirm

or modify or decide not to issue the proposed direction. But

in any case Central Government has to consider the

objections and pass a reasoned/ speaking/ written

order……..”


In Paragraph No. 98 the NGT again failed to exercise its jurisdiction

by not looking into the rationality of decision of State Government

and as observed that:---

“98. The next question that arises for consideration, as it has

been repeatedly raised by the learned counsel appearing for

the appellants, is the non application of mind. While it is

admitted that the powers of issuing direction under Section 5

of the EP Act is executive in nature, Rule is well settled that

the executive authority, while passing the order, need not give

elaborate reasons like that of a Judicial or Quasi Judicial

Authority.”

However completely missed to appreciate that power U/s 5 EPA

1986 is a decision-making power to be passed under section 5 of

Statutes EPA 1986 and to be passed in accordance with procedure

prescribed under Rule 4 EPR, 1986 and therefore the reason is

demand of the very rule itself which mandates that not only the

reason have to be given but also it has to be reduced into writing and

to be given to the affected persons as well after giving them due

hearing. The NGT could not appreciate that there was no reason at

all and the draft Notification was made absolute and put into force

without passing an order of even one line on the substance of

objection and the said stand of NGT goes against the Judgment

passed by NGT (Principal Bench) itself in exactly similar matter in a

case no. application no 102 of 2013, 103/2013 and 109/2012 Bearing

title Plastic Federation and anr vs UOI and ors and other matters

whereas vide Judgment dated 29.09.2014 NGT has passed directions

…………

“In light of the above, we dispose of these three

Original Applications with directions to the concerned

Respondents to act expeditiously and pass appropriate

orders after granting opportunity of being heard on

issuance of a public notice.”

That again the NGT could not appreciate the import of the judgment

passed by Honourable Supreme Court of India as passed in in

KARUNA CASE WPC NO 154 of 2011 dated 10.12.2014 and also


in final order dated 15.07.2016 wherein it is crystal clear that the

state has not done anything to comply with the waste management

and has in fact only made the entire industry an scape goat and that

the honourable Supreme Court has outrightly refused the proposition

of ban on the plastics and in fact insisted on the compliance of the

MSW provisions and the performance of the statutory duties by the

appropriate authorities in accordance with law.It is further submitted

that :Karuna Society for Animals and Nature & others Vs. Union

of India & others (W.P.-Civil) No. 154/2012was filed by one

N.G.O. seeking for issuance of appropriate directions from Hon‟ble

Supreme Court of India thereby to impose prohibition on the storage,

sale and disposal of plastic bags in all Municipalities and Municipal

corporations. Besides, some other directions relating to plastic waste

management and collection, disposal, segregation thereof were also

made. Hon‟ble Supreme took a very strong stand and dismissed the

prayer of said N.G.O. in so far as direction for imposition of Ban/

prohibition is concerned and made clear that it is not for the Hon‟ble

Supreme Court to monitor the functioning of concerned authorities

and local authorities to see that areas of the Local self government

are not polluted. However taking note of the issues relating to plastic

waste disposal and management issued three directions.

1. Firstly, directed Union of India and State government to take

all necessary steps in the matter in accordance with Law by

constituting committees consisting of competent persons who

have got sufficient knowledge on the subject matter.

2. Secondly, Central government to also set up an appropriate

monitoring mechanism in the matter.

3. Thirdly, Hon‟ble Supreme Court observed that respective

regional N.G.T. benches could monitor and regulate the cases

by passing/ giving orders or direction to all the concerned

statutory authorities and local self-governments in the country

for discharge of their constitutional and statutory duties.

Same was the import of the Order dated 03.04.2013 passed in Ankur

Gutkha case SLP(C) NO 16308/2007 where the issues relating to

non compliance by different states of the provisions of the MSW


rules 2000 was highlighted by SC.

That there are host of laws (Acts, regulations, guidelines, BIS

Standards) for governing of regulations the science of plastic in its

different fields. Rather than making sure the compliance of the same

the state authority has taken a most irrational, illogical and illegal

step. From the pleading submitted by the state it is very clear that

except some bald statements nothing credible material has been

submitted by them to support their action.

That thus the entire case is one of the nature where the NGT has

failed to exercise its jurisdiction. On the grounds mentioned in the

present synopsis as well as on the grounds as mentioned in the main

body of the appeal the impugned judgment is fit to be setaside.

The list of dates and events giving rise to the present petition runs as

under:-

23.05.1986 That in order to implement the decisions which were taken

at the United Nations Conference on the Human

Environment held at STOCKHOLM in June 1972 in

which India participated, in so far as they relate to the

protection and improvement of environment and the

prevention of hazards to human beings other living

creatures, plants and property, the Union Parliament by

taking recourse to Entry 13 of the Union List reading with

Article 253 of the Constitution of India enacted the

Environment[Protection] Act 1986, herein after called as

EPA 1986.

19.09.1986 In exercise of powers conferred by section 6 and 25 of the

EPA 1986 the central government made the Environment

[Protection] Rules 1986 for the purposes of carrying out

the provisions mentioned in EPA 1986.


10.02.1988 Power U/s 5 of the Environment Protection Act, 1986 was

delegated to the various States U/s 23 of the Environment

Protection Act, 1986 by the Central Government.

August 1997 Ministry of environment and forest constituted

NATIONAL PLASTIC WASTE MANAGEMENT

TASK FORCE under the chairmanship of Sh. Dilip

Biswas which submitted its report whereby suggested

various strategies for effective management of plastic

wastes incorporating the rule of reduction, reuse, recycling

of wastes.

22.08.1997 The central pollution control board published draft report

mentioning therein that the imposition of ban is not a

solution but the careful handling of municipal waste is and

that the biodegradable plastic bags are not very practical

concept and that plastic in itself is not an environment

hazard.

March 1999 That in the meantime vide order dated 16.01.1998 passed

in WP(C) NO 888/1996 “titled as ALMITRA PATEL

AND ANR VS UNION OF INDIA AND ORS, while

taking cognizance of the grim situation of the municipal

solid waste management in the class I cities of India in

particular, a committee WAS constituted by THE

Honorable Supreme Court of India for suggesting

improvement in solid waste management practices in

class one cities in India under the chairmanship of Mr.

Asim Burman [Municipal Commissioner Calcutta

Municipal Corporation] which submitted its report in

march 1999 with various proposals.

02.09.1999 In exercise of the powers conferred by section 3[2] [VIII] of

the EPA 1986 the central government notified the rules


for the manufacture and use of recycled plastics, carry

bags, and containers and provided detailed provisions

regarding the matters relating to the manufacture, sale,

distribution and use of recycled plastic carry bags

containers, colored and pigmented plastic bags, recycling,

marking, codification as well as thicknesses etc.

25.09.2000 In exercise of the powers conferred by sections 3, 6 and 25

of the EPA 1986 the Central Government made the

Municipal Solid Waste[ Management and Handling]

Rules 2000 to regulate the management and handling of

the municipal solid wastes and under which the municipal

authorities, state government and union territory

administration as well as central pollution control boards

and state boards or the committees were made absolutely

responsible for the issues relating to management and

handling of municipal wastes.

February 2002 A high powered committee under the chairmanship of Sh.

Rangnath Mishra (former Chief Justice of India, and

Member of Parliament, and member, parliamentary

consultative committee on environment and forests) was

constituted which was assigned the task of examining the

regulation son plastic wastes and to suggest appropriate

measures for collection, segregation, treatment, and

disposal of plastic wastes. The report was furnished in

February 2002 along with various measures but none of

them were towards the ban of plastic bags per se(and thus

other plastic products).

14.05.2008 Vide order dated 09.11.2007 passed in WPC no.6456 of

2004 justice R.C.Chopra Committee was constituted to

study the issue regarding environmental hazards including


health hazards arising out of the use of plastic bags in the

city of Delhi which submitted its report on 14.05.2008

which also not supported to impose the ban on the plastics

materials (and thus other plastic products).

August 2008 The Central Pollution Control Board came up with the

“Draft Final Report on Establishment and Impact of

Biodegradable Plastics on Environment/Food “ in which it

was clearly highlighted that the complete switchover to

the biodegradable plastic is not feasible at this stage of

time and that the biodegradable plastics have its own

environmental and economic ramifications and

consequences and therefore it cannot be inducted as the

substitute of degradable and non degradable plastic bags.

That it is expansive, involves high research and

development cost, it is gripped with low productivity,

technical uncertainties, price biasness ,and that true

technological route for developing biodegradable

polymer/ plastics is yet to be discovered indigenously and

that it is a myth that it has no adverse environmental

impact.

04.02.2011

02.07.2011 That again the Central Government in exercise of the

powers conferred by section 3, 6 and 25 of the

Environment Protection Act 1986 formulated the

comprehensive Rules governing the field of plastic bags

i.e. Plastic Waste (Manufacture and Handling) Rules, 2011

superseding the earlier Recycled Plastic Manufacture And

Usage Rules 1999 and notified the same on 04.02.2011

which was again amended on 2 July 2011 and under these

set of rules manufacture, use , sale and distribution of


plastic bags of minimum thickness 40 microns have been

duly permitted throughout the territory of India without

any exception.

03.04.2013: Same was the import of the Order dated 03.04.2013

passed in Ankur Gutkha case SLP(C) NO 16308/2007

where the issues relating to non compliance by different

states of the provisions of the MSW rules 2000 was

highlighted by honorable Supreme Court of India.

29.09.2014

15.10.2014 The one association namely North Bengal Plastic

Manufacturers and Dealers Welfare Society moved a RTI

application to CPCB and they get reply on 26.11.2014 in

which shocking revelations were made by the CPCB

indicating that they have never done any Environment

Impact Assessment on the science of Plastics and they

have no data available to assess the impact of imposition

of ban on science of plastics and use of alternative and

substitute products e.g. Jute, cotton or paper etc.

28.10.2015 That the respondent State of Karnataka (Department of

Environment) vide …………………………………..

issued a impugned Notification in exercise of the powers

conferred by section–5 of Environment Protection Act

1986 intending to put a blanket ban on manufacturing,

usage, sale and distribution of plastic bag in the State of

Karnataka.

The petitioner filed its objection to the said impugned

notification on 20.11.2015 challenging the proposed

notification on the grounds of its being ultra vires to the

Parent Act i.e. Environment Protection Act, 1986 and the

rules framed. The petitioner also cautioned the respondent


about the adverse environment impact of removing plastic

bags and replacing with other alternatives known to

involve higher environmental cost. The petitioner supplied

vast empirical data and report of various studies to

substantiate its contentions.

The objections to the said impugned Notification were

also filed by various other stake holders categorically

stating therein that any such move to ban the plastic bags

shall not only be counterproductive but will also offend the

Central Rules i.e. Plastic Waste (Management and

Handling) Rules, 2011 as amended upto date framed

under the Environment Protection Act, 1986.

11.03.2016 State of Karnataka issued Notification acting U/s 5 of the

Environment Protection Act, 1986 thereby imposed

blanket ban on Manufacture, supply, sale and use of

Plastic carry bags, Plastic banners, Plastic buntings, Plastic

Flex, Plastic Flags.

18.03.2016 Central Government framed new set of rules U/s 3, 6 & 25

of the Environment Protection Act, 1986 as Plastic Waste

Management Rules, 2016.

08.04.2016 Central Government framed new set of rules U/s 3, 6 & 25

of the Environment Protection Act, 1986 as Solid Waste

Management Rules, 2016.

………….. The Appellant moved the writ Jurisdiction of Hon‟ble

High Court of Karnataka thereby challenged the ambit of

power and competence U/s 5 of the Environment

Protection Act, 1986. Hon‟ble High Court granted liberty

to the appellant to challenge the same before National

Green Tribunal.


15.07.2016 Same was the effect of the judgment passed in KARUNA

CASE WPC NO 154 of 2011 dated 10.12.2014 and also

in final order dated 15.07.2016 wherein it is crystal clear

that the honorable supreme court has out rightly refused

the proposition of ban on the plastics and in fact insisted

on the compliance of the MSW provisions and the

performance of the statutory duties by the appropriate

authorities in accordance with law. It is further submitted

that: Karuna Society for Animals and Nature & others Vs.

Union of India & others (W.P.-Civil) No. 154/2012 was

filed by one N.G.O. seeking for issuance of appropriate

directions from Hon‟ble Supreme Court of India thereby

to impose prohibition on the storage, sale and disposal of

plastic bags in all Municipalities and Municipal

corporations. Besides, some other directions relating to

plastic waste management and collection, disposal,

segregation thereof were also made. Hon‟ble Supreme

took a very strong stand and dismissed the prayer of said

N.G.O. in so far as direction for imposition of Ban/

prohibition is concerned and made clear that it is not for

the Hon‟ble Supreme Court to monitor the functioning of

concerned authorities and local authorities to see that areas

of the Local self government are not polluted. However

taking note of the issues relating to plastic waste disposal

and management issued three directions: Firstly, directed

Union of India and State government to take all necessary

steps in the matter in accordance with Law by constituting

committees consisting of competent persons who have got

sufficient knowledge on the subject matter. Secondly,

Central government to also set up an appropriate

monitoring mechanism in the matter. Thirdly, Hon‟ble

Supreme Court observed that respective regional N.G.T.

benches could monitor and regulate the cases by passing/


giving orders or direction to all the concerned statutory

authorities and local self-governments in the country for

discharge of their constitutional and statutory duties.This

order will go long way to stop NGOs from moving

Hon‟ble Supreme Court for interference into the Laws

and policies of the appropriate government and seeking

orders for ban or prohibition. Besides, vide this order

Honorable Supreme Court made a very clear observation

that the concerned authorities should discharge their

statutory and constitutional duties, which very clearly and

conclusively means the implementation of waste

management measures. No observation has been made by

court showing or interpreting as to imposition of any

prohibition and all along the performance of duties by

authorities was insisted for by the Supreme Court.

25.07.2016 The Government of Karanataka filed its reply in Appeal

No. 119 of 2016.

………….. Department of Chemicals and Petro chemical

(Respondent No. 4) before National Green Tribunal filed

reply and categorically supported the case of appellants (as

extracted in paragraph No. 52, 53, 54 & 55 of the

Impugned Judgment. In paragraph No. 55 the Respondent

No. 4 which was also in consonance with the view of

Respondent No. 3 which is Union of India represented

through Ministry of Environment and Forest categorically

denied any idea of ban.

…………… 5th Respondent i.e. Central Institute of Plastic Engineering

in its reply (as extracted in Para No. 56, 57 of the

Impugned Judgment very clearly supported the stand of

appellant and submitted that it is an industry falling under


green category and the ban of manufacture, use and sale of

plastic carry bags and other items is against the public

policy. In Para No. 112 of the impugned Judgment

National Green Tribunal itself summarize the views of

Central Government which is aiming at Waste

Management not imposition of ban.

13.01.2017 National Green Tribunal South Zone at Chennai dismissed

the appeal preferred by present Appellant along with

various other appeals vide order dated 13.01.2017.

….02.2017 Hence the present appeal drafted and filed.




(Under Section 22 of the National Green Tribunal Act 2010)

(Arising out of the Impugned Judgment/ Final order dated

13.01.2017 passed by the National Green Tribunal (South Zone

Bench), Chennai in Appeal No. 119 of 2016)

In the matter of:


POSITION OF PARTIES

IN THE IN THE IN THIS

TRIAL HIGH HON‟BLE

COURT COURT COURT

Karnataka State Plastic Association Appellant

Appellant

Rajaji Nagar Industrial Estate

Bangalore, Rep. by its President

Mr. V. Vijay Kumar

VERSUS

1. The State of Karnataka Respondent

Respondent

Rep. by its Principal Secretary No. 1 No.

1

Department of Forest, Environment

And Ecology, Bangalore

2. Member Secretary Respondent Respondent

Karnataka State Pollution Control No. 2 No.

2

Bangalore

3. Union of India Respondent

Respondent

Rep. by its Secretary to Government No. 3 No.

3

Ministry of Environment, Forest, and

Climate Change, New Delhi

4. Commissioner Respondent

Respondent

Bruhat Bangaluru Mahaagar Palike No. 6 No. 4

(BBMP)

Bangalore


5. The Secretary Respondent

Respondent

Ministry of Chemicals and Fertilizers, No. 4

No. 5

Dept. of Chemicals and Petro Chemicals

New Delhi

6. The Director General Respondent

Respondent

Central Institute of Plastics Engineering No. 5

No. 6

And Technology, TVK Industrial Estate

Guindy, Chennai

(All are Contesting Respondents)

Memo of Appeal under Section 22 of the National Green

Tribunal Act 2010

To

The Hon‟ble Chief Justice of India and His

Companion Judges of the Hon‟ble

Supreme Court of India

The humble Petition of the

Appellant above named

MOST RESPECTFULLY SHOWETH:

1) That the appellant prefers the present appeal against the

impugned judgment and final order dated 13.01.2017 passed by

the National Green Tribunal (South Zone Bench), Chennai in

Appeal No. 119 of 2016 whereby the NGT dismissed the appeal

in grave error of facts and law and failed to exercise its

jurisdiction.


2) QUESTION OF LAW:

that the present appeal raises following questions of law, inter-

alia amongst others which may be raised during submissions or at

later or appropriate stage of the proceedings for the kind

consideration of honorable Court.

a) Whether National Green Tribunal (South Zone Bench),

Chennai in Appeal No. 119 of 2016 has not completely failed

to exercise its jurisdiction?

b) Whether Section 5 of the EPA DOES NOT empower state

government to issue a Notification of general/ generic nature

or to exercise a rule making power for a whole whole state and

it only gives power to issue a specific direction of a specific

nature against a specific person/specific officer or specific

authority for a specific purpose etc.

c) Whether Rule 4.4 of the Environment Protection Rules 1986

does not mandate that the Central Government (or its delegate)

shall have to consider the objections and for REASONSTO

BE RECORDED IN WRITINGit will have to either confirm

or modify or decide not to issue the proposed direction. But in

any case Central Government has to consider the objections

and pass a reasoned/ speaking/ written order (which has not

been done in the present case). And thus whether the NGT

could not failed to appreciate the judgment of honourable

supreme court as passed in B.A. Linga Reddy and Ors. Vs.

Karnataka State Transport Authority and Ors. 2015 (4) SCC

515 wherein honourable Supreme Court held that the rule of

reason is antithesis to arbitrariness in action and is a necessary

concomitant of the Principles of Natural Justice.

d) That whether the Respondents have ever ascertained if the

plastic carry bags and other plastic products within the

parameters prescribed EPA 1986 and Rules framed thereunder

can pose a threat to the quality of air and water and that


whether the management and handling of plastic wastes, if

done in accordance with the various provisions of the Plastic

Waste (Management and Handling) Rules 2011 (now Rules

2016) and Municipal Solid Waste (Management and

Handling) Rules 2000(now Rules 2016) can cause water and

air pollution because of its inherent chemical and physical

nature and character or composition? And

e) That whether an issuance of direction imposing complete

prohibition on the sale, usage, manufacture and storage of

plastic carry bags etc without conducting any environment

impact assessment (which involves complete life cycle analysis

of a particular produce and its comparative studies) of the

probable consequences of the removal of plastic carry bags

and substitution thereof with other alternatives can be termed

as rational and reasonable direction?

f) Whether the non performance of the mandatory duties casts

upon the municipal authorities /civic agencies of the State or

upon an appropriate government or the instrumentality or

agency of the State under the Plastic Waste (Management and

Handling) Rules 2011(and now Rules 2016), Municipal Solid

Wastes (Management and Handling) Rules, 2000(and now

Rules 2016), can become the basis for imposition of

prohibition/ban on the sale, usage, storage and manufacture of

plastic carry bags etc and that whether the non delivery by a

government or civic agency or any wing of the

State(especially when a mandatory duty cast upon them by

way of laws in force) can be made the basis for imposition of

blanket ban on the fundamental rights guaranteed under

Article 19(1)(g) of the Constitution of India? And that whether

the administrative inconvenience or expediency can become

the basis of total prohibition affecting rights under article

19(1)(g) of the constitution.


3) BRIEF FACTS:

That the facts of the case, in brief, are as below: That the present

case has genesis in a Notification dated …… issued by the State

of Karnataka whereby a complete blanket ban has been imposed

in following terms:-The State of Karnataka exercised its power of

taking recourse of such measure to section 5 of EPA 1986 R/w

Rule 4 of the EPR 1986. Before that the Respondent published

draft Notification of exactly same nature on ….. and invited

objections from the stake-holders including the present appellant

submitted objection along with various credible and relevant data,

study material, reports and recommendations of committees

appointed by the Government of India and other agencies.

Besides, the appellant also relied upon affidavit filed by Central

Government and its agencies before different Courts in their

support. The legality rationality and propriety of the Notification

was challenged and questioned on basis of those Annexure. That

the State Government suddenly on one given date i.e. republished

the draft Notification and confirmed it, making it absolute and

enforce with immediate effect. Being aggrieved the appellants

moved the Hon‟ble High Court of Karnataka at Bengaluru and

after securing liberty from there challenged it before NGT (SZ)

Bench at Chennai. The Brief facts giving rise to the present appeal

can be summarized as below:

1. That on 23.05.1986 in order to implement the decisions which

were taken at the United Nations Conference on the Human

Environment held at STOCKHOLM in June 1972 in which India

participated, in so far as they relate to the protection and

improvement of environment and the prevention of hazards to

human beings other living creatures, plants and property, the Union

Parliament by taking recourse to Entry 13 of the Union List reading

with Article 253 of the Constitution of India enacted the


Environment [Protection] Act 1986, herein after called as EPA

1986.The true typed copy of the Environment Protection Act 1986

is annexed herewith and marked as Annexure A - 1 (Page No.

).

2. In exercise of powers conferred by section 6 and 25 of the EPA

1986 the central government made the Environment [Protection]

Rules 1986 for the purposes of carrying out the provisions

mentioned in EPA 1986 as on dated 19.09.1986. The true typed

copy of the Environment Protection Rules 1986 is annexed

herewith and marked as Annexure A - 2 (Page No. ).

3. Power U/s 5 of the Environment Protection Act, 1986 was

delegated to the various States U/s 23 of the Environment

Protection Act, 1986 by the Central Government on 10.02.1988.

The true typed copy of the notification dated 10.02.1988 is annexed

herewith and marked as Annexure A - 3 (Page No.

).

4. On August 1997 Ministry of environment and forest constituted

NATIONAL PLASTIC WASTE MANAGEMENT TASK

FORCE under the chairmanship of Sh. Dilip Biswas which

submitted its report whereby suggested various strategies for

effective management of plastic wastes incorporating the rule of

reduction, reuse, recycling of wastes. The report was filed along

with the objection of the Appellant submitted before the State

Government.

5. The central pollution control board published draft report on

22.08.1997 mentioning therein that the imposition of ban is not a

solution but the careful handling of municipal waste is and that the

biodegradable plastic bags are not very practical concept and that

plastic in itself is not an environment hazard.


6. In the meantime vide order dated 16.01.1998 passed in WP(C) NO

888/1996 “titled as ALMITRA PATEL AND ANR VS UNION

OF INDIA AND ORS, while taking cognizance of the grim

situation of the municipal solid waste management in the class I

cities of India in particular, a committee WAS constituted by THE

Honorable Supreme Court of India for suggesting improvement in

solid waste management practices in class one cities in India under

the chairmanship of Mr. Asim Burman [Municipal Commissioner

Calcutta Municipal Corporation] which submitted its report in

march 1999 with various proposals.

7. On dated 02.09.1999In exercise of the powers conferred by section

3[2] [VIII] of the EPA 1986 the central government notified the

rules for the manufacture and use of recycled plastics, carry bags,

and containers and provided detailed provisions regarding the

matters relating to the manufacture, sale, distribution and use of

recycled plastic carry bags containers, colored and pigmented

plastic bags, recycling, marking, codification as well as thicknesses

etc.

8. In exercise of the powers conferred by sections 3, 6 and 25 of the

EPA 1986 the Central Government made the Municipal Solid

Waste[ Management and Handling] Rules 2000 to regulate the

management and handling of the municipal solid wastes and under

which the municipal authorities, state government and union

territory administration as well as central pollution control boards

and state boards or the committees were made absolutely

responsible for the issues relating to management and handling of

municipal wastes.

9. A high powered committee under the chairmanship of Sh.

Rangnath Mishra (former Chief Justice of India, and Member of


Parliament, and member, parliamentary consultative committee on

environment and forests) was constituted which was assigned the

task of examining the regulation son plastic wastes and to suggest

appropriate measures for collection, segregation, treatment, and

disposal of plastic wastes. The report was furnished in February

2002 along with various measures but none of them were towards

the ban of plastic bags per se(and thus other plastic products).

10. Vide order dated 09.11.2007 passed in WPC no.6456 of 2004

justice R.C.Chopra Committee was constituted to study the issue

regarding environmental hazards including health hazards arising

out of the use of plastic bags in the city of Delhi which submitted

its report on 14.05.2008 which also not supported to impose the

ban on the plastics materials (and thus other plastic products).

11. In the month of August 2008 The Central Pollution Control Board

came up with the “Draft Final Report on Establishment and Impact

of Biodegradable Plastics on Environment/Food “in which it was

clearly highlighted that the complete switchover to the

biodegradable plastic is not feasible at this stage of time and that

the biodegradable plastics have its own environmental and

economic ramifications and consequences and therefore it cannot

be inducted as the substitute of degradable and non degradable

plastic bags. That it is expansive, involves high research and

development cost, it is gripped with low productivity, technical

uncertainties, price biasness ,and that true technological route for

developing biodegradable polymer/ plastics is yet to be discovered

indigenously and that it is a myth that it has no adverse

environmental impact.

12. That again the Central Government in exercise of the powers

conferred by section 3, 6 and 25 of the Environment Protection Act

1986 formulated the comprehensive Rules governing the field of

plastic bags i.e. Plastic Waste (Manufacture and Handling) Rules,


2011 superseding the earlier Recycled Plastic Manufacture And

Usage Rules 1999 and notified the same on 04.02.2011 which was

again amended on 2 July 2011 and under these set of rules

manufacture, use, sale and distribution of plastic bags of minimum

thickness 40 microns have been duly permitted throughout the

territory of India without any exception.

13. Same was the import of the Order dated 03.04.2013 passed in Ankur

Gutkha case SLP(C) NO 16308/2007 where the issues relating to

non compliance by different states of the provisions of the MSW

rules 2000 was highlighted by honorable Supreme Court of India.

The True copy of the order dated 03.04.2013 passed by the

Supreme Court in Ankur Gutkha case SLP(C) NO 16308/2007 is

annexed herewith and marked as Annexure A - 4 (Page

No. ).

14. On dated 15.10.2014 The one association namely North Bengal

Plastic Manufacturers and Dealers Welfare Society moved a RTI

application to CPCB and they get reply on 26.11.2014 in which

shocking revelations were made by the CPCB indicating that they

have never done any Environment Impact Assessment on the

science of Plastics and they have no data available to assess the

impact of imposition of ban on science of plastics and use of

alternative and substitute products e.g. Jute, cotton or paper etc.

The true copy of the RTI dated 15.10.2014 and other RTIs are

annexed herewith and marked as AnnexureA - 5 (Page No.

).

15. That the respondent State of Karnataka (Department of

Environment) on 28.10.2015 issued a draft Notification in exercise

of the powers conferred by section–5 of Environment Protection

Act 1986 intending to put a blanket ban on manufacturing, usage,

sale and distribution of plastic bags and many other plastic products


in the State of Karnataka on dated 28.10.2015. The true copy of

the draft Notification dated 28.10.2015 issued by the Government

of Karnataka is annexed herewith and marked as Annexure

A – 6 (Page No. ).

16. The petitioner filed its objection to the said impugned notification

on 20.11.2015 challenging the proposed notification on the

grounds of its being ultra vires to the Parent Act i.e. Environment

Protection Act, 1986 and the rules framed. The petitioner also

cautioned the respondent about the adverse environment impact of

removing plastic bags and replacing with other alternatives known

to involve higher environmental cost. The petitioner supplied vast

empirical data and report of various studies to substantiate its

contentions. The true copy of the objections filed by the appellant

along with the list of enclosures dated 20.11.2015 is annexed

herewith and marked as Annexure A – 7 (Page No.

).Theappellant will file the entire at the appropriate stage of the

proceedings or as and when directed by the honorable court and at

this stage only filing the list of documents for the sake of brevity

for the kind consideration of honorable court.

17. The objections to the said impugned Notification were also filed by

various other stake holders categorically stating therein that any

such move to ban the plastic bags shall not only be

counterproductive but will also offend the Central Rules i.e. Plastic

Waste (Management and Handling) Rules, 2011 as amended upto

date framed under the Environment Protection Act, 1986.

18. On dated 11.03.2016 State of Karnataka issued Notification acting

U/s 5 of the Environment Protection Act, 1986 thereby imposed

blanket ban on Manufacture, supply, sale and use of Plastic carry

bags, Plastic banners, Plastic buntings, Plastic Flex, Plastic Flags.

The true copy of the notification dated 11.03.2016 is annexed


herewith and marked as Annexure A - 8 (Page No.

).

19. Central Government framed, in supersession of Rules of 2011, new

set of rules U/s 3, 6 & 25 of the Environment Protection Act, 1986

as Plastic Waste Management Rules, 2016 on dated 18.03.2016

and On dated 08.04.2016Central Government framed new set of

rules U/s 3, 6 & 25 of the Environment Protection Act, 1986 as

Solid Waste Management Rules, 2016. The true copy of the

Plastic Waste Management Rules 2016 is annexed herewith and

marked as Annexure A – 9 (Page No. ). The true copy of

the Solid Waste Management Rules 2016 is annexed herewith and

marked as Annexure A – 10 (Page No. ).

20. The Appellant moved the writ Jurisdiction of Hon‟ble High Court

of Karnataka thereby challenged the ambit of power and

competence U/s 5 of the Environment Protection Act, 1986.

Hon‟ble High Court granted liberty to the appellant to challenge

the same before National Green Tribunal. The true copy of the

order dated 29.03.2016 passed by the Honorable High Court of

Karnataka in writ Petition No. 14691 of 2016 is annexed herewith

and marked as Annexure A – 11 (Page No. ).

21. That the appellants thereafter moved the NGT South Zone by way

of appeal no 119 of 2016. The true copy of the Appeal no 119 of

2016 filed before the NGT South Zone Bench at Chennai is

annexed herewith and marked as Annexure A – 12 (Page No.

).

22. Same was the effect of the judgment passed in KARUNA CASE

WPC NO 154 of 2011 dated 10.12.2014 and also in final order

dated 15.07.2016 wherein it is crystal clear that the honorable

supreme court has out rightly refused the proposition of ban on the

plastics and in fact insisted on the compliance of the MSW

provisions and the performance of the statutory duties by the


appropriate authorities in accordance with law. It is further

submitted that: Karuna Society for Animals and Nature & others

Vs. Union of India & others (W.P.-Civil) No. 154/2012 was filed

by one N.G.O. seeking for issuance of appropriate directions from

Hon‟ble Supreme Court of India thereby to impose prohibition on

the storage, sale and disposal of plastic bags in all Municipalities

and Municipal corporations. Besides, some other directions relating

to plastic waste management and collection, disposal, segregation

thereof were also made. Hon‟ble Supreme took a very strong stand

and dismissed the prayer of said N.G.O. in so far as direction for

imposition of Ban/ prohibition is concerned and made clear that it

is not for the Hon‟ble Supreme Court to monitor the functioning of

concerned authorities and local authorities to see that areas of the

Local self government are not polluted. However taking note of the

issues relating to plastic waste disposal and management issued

three directions: Firstly, directed Union of India and State

government to take all necessary steps in the matter in accordance

with Law by constituting committees consisting of competent

persons who have got sufficient knowledge on the subject matter.

Secondly, Central government to also set up an appropriate

monitoring mechanism in the matter. Thirdly, Hon‟ble Supreme

Court observed that respective regional N.G.T. benches could

monitor and regulate the cases by passing/ giving orders or

direction to all the concerned statutory authorities and local self-

governments in the country for discharge of their constitutional and

statutory duties. This order will go long way to stop NGOs from

moving Hon‟ble Supreme Court for interference into the Laws and

policies of the appropriate government and seeking orders for ban

or prohibition. Besides, vide this order Honorable Supreme Court

made a very clear observation that the concerned authorities should

discharge their statutory and constitutional duties, which very

clearly and conclusively means the implementation of waste

management measures. No observation has been made by court

showing or interpreting as to imposition of any prohibition and all


along the performance of duties by authorities was insisted for by

the Supreme Court. The true copy of the judgment dated

15.07.2016 passed by the Honorable Supreme Court of India in

Karuna society for animal welfare vs Union of India and others

WPC NO 154 of 2011 is annexed herewith and marked as

Annexure A -13 (Page No. ).

23. On dated 25.07.2016 the Government of Karnataka filed its reply

in Appeal No. 119 of 2016. The True copy of the reply filed by the

State of Karnataka on 25.07.2016 is Annexed herewith and

marked as Annexure A -14 (Page No. ).

24. Department of Chemicals and Petro chemical (Respondent No. 4)

before National Green Tribunal filed reply and categorically

supported the case of appellants (as extracted in paragraph No. 52,

53, 54 & 55 of the Impugned Judgment. In paragraph No. 55 the

Respondent No. 4 which was also in consonance with the view of

Respondent No. 3 which is Union of India represented through

Ministry of Environment and Forest categorically denied any idea

of ban. The true copy of the reply filed by the respondent no 4 i.e.

Ministry of Chemical and fertilizers dated 12.07.2016 in appeal no

119 of 2016 before NGT South Zone Bench Chennai is annexed

herewith and marked as Annexure A –15(Page No. ).

The true copy of the reply filed by the respondent no 5 i.e. CIPET

dated 19.07.2016 in appeal no 119 of 2016 before NGT South

Zone Bench Chennai is annexed herewith and marked as

Annexure A – 16 (Page No. ).5th Respondent i.e.

Central Institute of Plastic Engineering in its reply (as extracted in

Para No. 56, 57 of the Impugned Judgment very clearly supported

the stand of appellant and submitted that it is an industry falling

under green category and the ban of manufacture, use and sale of

plastic carry bags and other items is against the public policy. In


Para No. 112 of the impugned Judgment National Green Tribunal

itself summarize the views of Central Government which is aiming

at Waste Management not imposition of ban.

25. That the appellants also submitted their written submissions on nil

dates of hearing summarizing their entire case. The true typed copy

of the written submission filed by the appellant dated Nil in appeal

no 119 of 2016 before NGT South Zone Bench Chennai is

annexed herewith and marked as Annexure A - 17(Page No.

).

26. National Green Tribunal South Zone at Chennai dismissed the

appeal preferred by present Appellant along with various other

appeals vide order dated 13.01.2017.

GROUNDS:

4) That the NGT(SZ Bench) Chennai failed to exercised its jurisdiction as it

did not appreciate the:-

a) Reply filed by the Central Government (ministry of environment

and forest and Ministry of chemical and fertilizers) and argument

and submissions made by them (as referred to in paragraph no 52-

55 and paragraph no 111 and 112 of the impugned Judgment).

b) Further NGT did not appreciate that the impugned

Notification(dated 11.03.2016 issued by the state of

Karnataka) was issued in the background of and basis of

Plastic waste management Rules 2011 and Solid waste

Management Rules 2000 and that the just within a week after

that the Central Government, in supersession of previous

Rules, has framed new set of exhaustive Rules as Plastic

Waste Management Rules 2016( notified on 18.03.2016) and

Solid Waste Management Rules 2016(notified on 08.04.2016)

in which the Central Government has framed exhaustive rules

for the waste management including punitive provisions.


5) That the NGT South zone Bench failed to appreciate the contentions of

the appellants:-

I. On the ground of Ambit of power: That the Section 5 of the

EPA DOES NOT empower state government to issue a

Notification of general/ generic nature or to exercise a rule

making power for a whole state and it only gives power to

issue a specific direction of a specific nature against a specific

person/specific officer or specific authority for a specific

purpose etc. It may kindly be appreciated that under section 23

EPA 1986 the central Government has only delegated the

powers under section 5 of the EPA andSince nothing except

section 5 has been delegated therefore power of Central

Government to take administrative measures of general or

particular nature U/S-3 has not been delegated (and therefore

Section 3.2. (v) has also not been delegated which speaks

about the measures regarding the location of industries and

relocation thereof

II. That the NGT could not appreciate the ingredients of the

section 5 EPA thatThe exercise of power is subject to the

provisions of the Act i.e. EPA {and so subject to the Act and

Rules framed there under eg. Environment Protection Act,

1986 and rules framed there under eg. Environment

Protection Rules, 1986 and Plastic Waste Management Rules

of 2011(Now 2016), MSW Rules of 2000 (Now 2016)}.The text

of Section 5 is explicit about its ambit and scope and very

clear that; That it is a specific power (not general power); To

be exercised against specific person/ officer/ authority

(hereinafter referred to as individuals); For the purposes of the

Act;That it is a preventive power targeted against any

individual delinquent, violator, miscreant, polluter, or anyone

who is violating the terms and conditions etc. of his license or

against one who is acting against the mandate of law and / or

violating any other provisions of Environment Protection Act


1986 and Environment Protection Rules or other Rules framed

there under and not to pass a general order of the nature of

laying powers affecting the whole territory of a state which

can only be done by framing the Rules.

III. That the NGT could not appreciate that:- Rule 4 of the

Environment Protection Rules, 1986 prescribes a mandatory

procedure for exercise of power U/s-5 Environment Protection

Act, 1986 and mandates that:-The proviso to rule 4.3-b makes

clear about the opportunity of being heard to be given to the

occupier. And Rule 4.4 mandates that the Central

Government shall have to consider the objections and for

REASONSTO BE RECORDED IN WRITING it will have to

either confirm or modify or decide not to issue the proposed

direction. But in any case, Central Government must consider

the objections and pass a reasoned/ speaking/ written order

(which has not been done in the present case). In B.A. Linga

Reddy and Ors. Vs. Karnataka State Transport Authority and

Ors. 2015 (4) SCC 515. Supreme Court held that the rule of

reason is antithesis to arbitrariness in action and is a necessary

concomitant of the Principles of Natural Justice. Rule 4.5 is

not applicable in this case. However, the rule of speaking

order/ reasoned order/ direction in writing is very much

implicit here as well. Rule 4.6 enunciates the mode and

manner of issuance and service of notice/ proposed direction

and the comprehensive reading of the same makes very clear

that it must be addressed to the and served upon concerned

specific individual and that the service of notice/ proposed

direction is NOT envisaged to be issued by way of publication

of notification of a general nature (which was done in the

present case when a draft notification was published on

28.10.2015.

IV. That the NGT failed to appreciate the import of S.3.2.(v) EPA

and Rules 5 and Rule 13 of the EPR 1986 and the


administrative measures affecting the location of industries

and thus could not appreciate that:-

a. Section 3.2.(v) meant that the Central Government is

empowered to take measures with respect to, inter-alia

“restriction of areas in which any industries, operations or

processes or class of industries, operations or processes shall

not be carried out or shall be carried out subject to certain

safeguards.”

b. The said power has to be exercised for the purpose of

protecting and improving the quality of the Environment and

preventing, controlling and abating environmental pollution

(reference section 3.1).

c. These powers are envisaged to take administrative measures

of quasi-judicial in nature and not just executive directions(

because of specific rules prescribed to take such steps and also

there is specific provisions given under that) regarding any

sensitive or ecologically fragile areas of geographical nature

e.g. a biodiversity hotspot e.g. any coral island, around a

temple, near any particular beach etc. and not meant to be

exercised for a whole administrative unit i.e. a whole district

or state or country because in latter cases the Government has

to take recourse of rule making powers to regulate

environment under section 25 reading with section 6.2. (e).

d. Besides, in so far as the measures, which are specifically

relating to regulate the environmental pollution it shall have to

be U/s-6 Environment Protection Act, 1986 and administrative

measures U/s-3 Environment Protection Act, 1986 would not

be sufficient legally AND thus there has to be a rule and not

an administrative order of quasi judicial in nature.

V. That the NGT could not appreciate that the power to take

measures of the nature of section 3.2. (v) EPA is not covered U/s-

5 EPA is also evident from the reading of Rule 5 of Environment


Protection Rules which specifically prescribes a very detailed

procedure which the Central Government shall have to follow U/r-

5 Environment Protection Rules, 1986 in case they intend to take

measures of the nature of 3.2.(v).

a. Sub rule 5.1(i)-(x) enumerates the factors which the Central

Government has to take into account before embarking

upon any exercise of such nature and after that it has to

follow the procedure mentioned under sub rule 2-4 of rule

5.

b. The striking point is sub rule 3.(a) which makes clear that

the proposed notice has to be given by way of

NOTIFICATION in the official gazette and other similar

manner (The procedure which is completely missing from

the text of Rule 4 suggesting it to give an altogether

different nature and color). Further support can be found

from rule 13 which is of similar in nature as rule 5 is. From

the above submissions it is clear that the impugned

notification is colorable in nature and in fact it amounts to

the usurpation of the power of Central Governments rule

making powers by the state of Karnataka.

VI. That the NGT failed to appreciate that before taking any step

against the products listed in the impugned notifications it is

required to be established that the said products are

environmental pollutants and causes harms to environment. It

does mean that in order to strike at any particular product it

has to be established that the said product or industry

operation or process producing the said product or in

themselves are actually causing all above things and the

product qualifies to be an environmental pollutant U/s-2.(b) of

Environment Protection Act, 1986. Such finding has to be a

condition precedent to any exercise of power under

Environment Protection Act, 1986 and rules framed there

under.


a. That the natural consequence of the plane reading of all above

sections is that in order that power may be exercised by the

authority for imposing ban upon or for the closure,

prohibition or regulation of “any specific industry, or

operation, or process,” it has to be determined that the said

“any industry, or operation, or process,” i.e any particular

industry , or operation or process (Plastic Carry Bags here

in the present case) is actually causing pollution within the

meaning of section 2(b) of the EPA 1986. Now, the

meaning of expression“any industry, operation or process”

can duly be ascertained by giving reference to Rules

3,4,5,12,14 form V(schedule) of EPR.Further reference

from analogous provisions may also be drawn from Section

31A of Air Act and 33A of Water Act which are similar in

nature. The meaning of expression“any industry, operation

or process” can duly be ascertained by giving reference to

Section 2(k), 20(3), 25(1), 25(4), 27, 31, 33A of the Water

(Prevention and Control of Pollution) Act, 1974 and thus it

is very much clear that It does not mean the entire area in a

given territory or a State etc. (Similarly, in the Air Act,

1981 reference can be drawn from Sections 22,25/31A for

the said purpose). Further reference may be taken from

Rule32 (application for consent

.Industry/operation/process), Rule 34(direction under

section 33A) and schedules to the water Rules and Form

(iii) which prescribes for the application for consent for

establishing or taking any steps for establishment of

Industry/operation/process etc by some individual.

Reliance may also be placed on The Water (prevention and

control of Pollution) Cess Act 1977 on Section 2(c), and

section 3 the combined reading of these provisions

indicates about the construction of Industry/ operation/

process. The simple and plain reading of all these Sections

makes it very clear that reference to any industry, operation


or process is nothing but to the specific industry (e.g cotton

textile industry, cement industry, chemical industry, plastic

industry), specific operation (e.g… mechanical fishing

operation, drilling operation, mining operation or a

specific process(e.g…meat processing, food and fruit

processing, jute processing, raw material handling

processing and operation, etc) being performed by some

industrial natural or juristic person and

VII. That the NGT failed to appreciate the issues raised on basis

of rationality and could not appreciate that within the

parameters of EPA 1986 and Rules framed thereunder the

plastics products as defined in Section 3(b) of the Plastic

Waste (Management and Handling) Rules 2011 (Rules 3(c) of

2016 version) made of plastic as defined in Section 3(l) and

Section 3(o) of the Rules 2011(now rules 3(o), 3(X) if

manufactured under/within the conditions prescribed under

Rule 5 of the Plastic Waste (Management and Handling) Rules

2011(now under Rule 4) are not environmental pollutants

within the meaning of Section 2(b) of the Environment

(Protection) Act, 1986 and cannot cause environmental

pollution within the meaning of Section 2(c) of the

Environment (Protection) Act, 1986 and also cannot cause

pollution within the meaning of Section 2(e) of the

Water(Prevention and Control of Pollution) Act, 1974 and

Section 2(a) of the Air(Prevention and Control of Pollution)

Act, 1981 and (PWMH Rules of 2011 and MSW Rules 2000

have been referred also because at the time when the draft

notification has been published and then enforced the new

rules of 2016 have not been implemented and it is the

submission of the appellant that the executive exercise is hit by

previous as well as new Rules both.)

a. That thus NGT could not appreciate that the act of issuance of

direction imposing complete prohibition on the sale, usage,


manufacture and storage of plastic carry bags and other

products etc without conducting any environment impact

assessment (which involves complete life cycle analysis of a

particular produce and its comparative studies) of the

probable consequences of the removal of plastic carry bags

and substitution thereof with other alternatives cannot be

termed as rational and reasonable direction.

b. The NGT could not appreciate that plastic cups used for

drinking water and juice of size above 150 ml (made from PP

and HIPS for drinking water & juice) are more than 80

microns offers low cost hygienic solution & are easily

recyclable, which are affordable by common man even in

rural villages. These plastic cups have been banned without

considering the benefits and recyclability. The producers of

these cups are mainly SSIN & MSME units, where huge

investment have been made and are providing jobs to

hundreds of unskilled people. Even during the NGT case,

The affidavit filed by CIPET, Dept. of Chemical &

Petrochemical, Govt. of India & Ministry of Environment,

Forest and Climate Change, Govt. of India have mentioned

that ban is against the public policy and plastic products offer

an economical, hygiene solution, the production and uses

should be allowed as per rules and regulation laid down in

the recently revised Plastic Waste Management Rules 2016,

which also has no mention about plastic cups and this goes to

show that plastic cups are not source for causing even

mucipal problem. Besides, the stake holders including the

present association have also requested the State Government

to exempt plastic cups made from PP and HIPS for drinking

water & juice application which are generally above 150 ml

in size, as it does have good resale value post use & are

easily collected by rag pickers and sold to recyclers. The

recycled material made from PP and HIPS material are be


used in Manufacturing of plastic furniture products, pots,

buckets, mugs etc which have shelf life of more than 20 years

and than can finally be used for mixing with bitumen up to

8% in road making as per new Indian Road Congress

Notification. However the state Government has not taken

cognizance of the same.

c. The objection submitted before the state along with the

various Annexure/ enclosures makes it categorically clear

that science of plastics is most ecologically benign and

comparing the life cycle analysis with various other products/

substitutes/ probable alternates is far better on each scale of

ecological credentials. In the objections cum suggestions

submitted by the appellant association running from page 1

to 48 deals with various points on separate pages as

specifically marked in the index column of the objection cum

suggestion and the conclusions and data mentioned in these

pages are directly derived from the reports and studies of

national and international level annexed in different

enclosures. Some notable points worth inviting the kind

attention of your lordship are as below:

Enclosure P-1.3 at Page No. 75-122 recommendations made

by Supreme Court constituted Asseem Burman Committee.

Enclosure P-3: R.C. Chopra Committee at Page No. 145-160

showing issue is only a municipal problem.

Enclosure P-6: Report prepared by IIT Delhi, Page No. 198-231

is worth of attention showing the plastic bags are ecologically

many times better than Jute and Paper sacks.

Enclosure P-7: Report of IIT Delhi, showing life cycle analysis

report.

Enclosure P-8 is also report of IIT Delhi.


Enclosure P-9 shows no record exist with the Central Pollution

Control Board regarding environment impact assessment.

The life cycle analysis of different products can be seen in

Annexure P-13.3, P-13.5, P-14, P-17, P-19 annexed with the

objections.

View of Union of India is very much clear from the Inter-

ministerial Committee report filed by the ministry of

Environment and forest before Supreme Court of India in

Ankur Gutkha Case at Page No. 640-643.

The suggestions have been incorporated in Annexure P-20(Colly)

as well as P-18.

P-18 highlights the benefit of recycling and establishes that

recycling is the best method of waste management.

VIII. Non Performance of the duties by State:NGT could not

appreciate that the non performance of the mandatory duties

casts upon the municipal authorities /civic agencies of the

State or upon an appropriate government or the

instrumentality or agency of the State under the Plastic Waste

(Management and Handling) Rules 2011(and now Rules

2016), Municipal Solid Wastes (Management and Handling)

Rules, 2000(and now Rules 2016), cannot become the basis

for imposition of prohibition/ban on the sale, usage, storage

and manufacture of plastic carry bags etc and that the non

delivery by a government or civic agency or any wing of the

State(especially when a mandatory duty cast upon them by

way of laws in force) cannot be made the basis for imposition

of blanket ban on the fundamental rights guaranteed under

Article 19(1)(g) of the Constitution of India. And that the

administrative inconvenience or expediency cannot become

the basis of total prohibition affecting rights under article

19(1)(g) of the constitution.


IX. Reliance may kindly be placed upon following legal

authorities:-

S. Rangrajan Vs. P. Jagjeevan Ram & Others 1989(2) SCC 574

It is laid down that the fundamental freedom under Article

19(1) (a) can be reasonably restricted only for the purposes

mentioned in the Article 19(2) and the restriction must be

justified on the anvil of necessity and not the quicksand of

convenience or expediency.

Mohammed Faruk Vs. State of Madhya Pradesh & Others

1969(1) SCC 853. It is held that when the exercise of a right is

prohibited the burden of proving that a total ban on the

exercise of the right alone may insure the maintenance of the

general public interest lies heavily upon the State. Other

parameters are also highlighted regarding necessity and

proportionality.

X. Besides, the impugned notification is also violative of article

19 and 14 and 21 of the constitution of India.Kindly refer-

Godawat Pan Masala Products I.P. Ltd. and Anr. Vs. Union of

India and Ors. 2004 (7) SCC 68. In view of the said authority

it is to be appreciated that if there is a statutory provision

under which licenses have already been granted to the

manufacturers and there is also a statutory provision for

cancellation and suspension of a license. Without going

through such procedure the power in the State Authority to

suddenly bring about the result of cancellation or suspension

of the license without procedural safeguard would certainly be

arbitrary and liable to be hit by Art 14. And therefore the

power u/s 5 of Environment Protection Act needs to be read

down accordingly:

XI. That the impugned Notification is an arbitrary and

unreasonable piece of legislation which has caused serious

prejudice and violated Article 14,19(1)(g), 21, 301-304 of the


Constitution of India. The impugned direction is irrational and

is outrageous and in the notification the hostile discrimination

is very much implicit. The state has picked up the products on

basis of “pick and choose” and thus targeted the small-scale

industries of the citizens of state and has not touched any

Multi National Company or the products, which have been

mostly used by Multi National Company eg. Poly metallic

pouches etc. The exercise of power has been based upon pick

and choose and not on any scientific or rational studies and

thus the act of state is also vitiated by a malafide act oblique

nature.

a. Reliance may kindly be placed upon Ajay Hasia and Ors. Vs.

Khalid Mujib Sehravardi and Ors. 1981 (1) SCC 722. Para 16:

At the concluding part of Para No. 16 taking reference of

development of Right to equality under Indian Constitution

through E.P. Royappa Case, International Airport Authority

Case and Menaka Gandhi Vs. Union of India case the

unanimous Constitution Bench established that Arbitrariness

in State action is in itself sufficient to challenge the

administrative action and twin tests of reasonable nexus and

intelligible differentia are one of the means to check the state

action on the touch stone of Article 14.

b. Again In M.A. Rasheed Vs. State of Kerala (1974) 2 SCC

687 it is held “that whenever a public authority is invested

with the power to make an order which prejudicially affects

the rights of an individual, then, whatever may be the nature of

the authority, the proceedings of the public authority must be

regulated by the analogy of rules governing judicial

determination of disputed questions and that administrative

decision in exercise of powers even if conferred in subjective

terms has to be made in good faith based on relevant

considerations. The court can enquire whether a reasonable

man could have come to the decision without misdirecting


himself on law and facts. The courts will find out whether

conditions precedent to the forming of opinion have a factual

base and where reasonable conduct is expected, the criterion

of reasonableness is not subjective but objective.”

c. In R.D. Shetty vs. International Airport Authority of India –

(1997) 3 SCC 489 the Hon‟ble Supreme Court has held “that

it is indeed unthinkable that in a democracy governed by the

rule of law the executive government or any of its officers

should possess arbitrary powers over the interests of an

individual. Every action of the executive government must be

informed with reason and should be free from arbitrariness.

That is the very essence of the rule of law and its bare minimal

requirement”.

d. It is submitted that right under Article 19(1)(g) of the

Constitution can only be curtailed under clause 19(6) which

must satisfy the co-existence of twin conditions i.e. firstly the

restrictions imposed must be required in the interest of the

general public and secondly it must be a reasonable restriction.

The expression “in the interest of general public” is of wide

import comprehending public order, public health, public

security, and morals, economic welfare of the community and

the objects mentioned Part IV of the Constitution. (

Re:Municipal Corpn. Of the City of Ahmedabad vs. Jan

Mohd. Usmanbhai (1986) 3 SCC 20 and that reasonableness

has to be determined in an objective manner and that Article

19 read with Article 14 and 21 of the Constitution of India

requires that even the law must also be reasonable.

e. In Chintamanrao vs. State of M.P. AIR 1051 SC 118, AIR

1958 S.C. 731, Mohmmad Hanif Qureshi vs. State of M.P the

Hon‟ble Supreme Court has taken a consistent stand as regards

unreasonable restrictions, the vital principle which has to be

kept in mind is that the restrictive law should strike a proper

balance between the freedom guaranteed under Article


19(1)(g) and the social control permitted by clause (6) of

Article 19. The restriction must not be of an excessive nature

beyond what is required in the interest of the public.

XII. Principles Of Natural Justice And Its Non Compliance: as no

hearing was given and that the entire exercise under rule 4 was

a sham exercise.

f. In S.L. Kapur vs. Jagmohan – (11980) 4 SCC 379 the

Hon‟ble Supreme Court has held “that mere essence of

prejudice caused is not necessary and the non observance of

natural justice is in itself a prejudice caused. Hence merely

because the facts are admitted or are indisputable it does not

follow that the principles of natural justice need not be

observed.”

g. Swadeshi Cotton Mills Vs. Union of India. 1981 (1) SCC

664.Para 94: Pre- decisional hearing is must whenever there

is a procedure for the same given in the Act or Rule expressly

or impliedly.

h. Institute of Chartered Accountant of India Vs. L.K. Ratna.

1986 (4) SCC 537.Para 18: Post-decisional hearing cannot

cure the defect in all the circumstances.

XIII. Supreme Court‟s view on the compliance of MSW Rules and

failure of State Agencies:-

Almitra H.Patel v. Union of India, (2010) 15 SCC 619

(06/05/2005)

Almitra H. Patel v. Union of India, (2004) 13 SCC 538

(04/10/2004)

Amitra H. Patel v. Union of India, (2004) 13 SCC 536

(26/072004)


(14/01/2003)



(24/08/2000)

Almitra H. Patel v. Union of India, (2000) 2 SCC

679(15/02/2000)

Almitra H. Patel v. Union of India, (2000) 3 SCC

575(11/01/2000)


(24/11/1999)

Almitra H.Patel v. Union of India (2000) 2 SCC 689

(15/10/1999)

Almitra H. Patel v. Union of India (1998) 2 SCC

416(16/01/1998)

Dr.B.L. Wadehra v. Union of India (1996) 2 SCC 594,

In (2000) 2 SCC 679 Hon‟ble Supreme Court again showed concern

towards MSW Rules implementation and observed that

“…Without doubt the governmental agencies including the local

authorities have all the powers of the State to take action and

ensure that the city remains clean,. They have only to wake up

and act. The Court should, however, direct that the local

authorities, government and statutory authorities must discharge

their statutory duties and obligations in keeping the city at least

reasonably clean.”

a) The Hon‟ble Supreme Court has issued exhaustive guidelines in

the series of judgments passed in Almitra H. Patel v. Union of

India. In (2004) 13 SCC 536 for implementation of M.S.W.

Rules Supreme Court noted large scale non compliance with

MSW Rules and directed the State governments and Union

Territories to respond to the position.

b) Further vide judgment cited in (2004) 13 SCC 538 the Hon‟ble

Court showed concern for necessity for formulating an action

plan for management of Municipal Solid Wastes(MSW) in

respect of metro cities and State capitals by the Ministry of

uraban Development , in consultation with all


concernedemphasized, so that immediate commencement of

implementation of said plan may be ensured. Direction was also

issued to the Central Government to examine the matter at the

earliest and to file proposed action plan within certain period.

Direction was also issued to the Central Government , State

Governments and Pollution Control Board to examine various

aspects and to file reports.

c) In (2006) 2 SCC 679 It is further held After expressing

unhappiness over the high level pollution in Delhi, over the lack

of accountability at all levels of the municipal authorities

concerned, and over the inaction of respondent authorities in

connection with the fourteen directions issued in Dr.B.L.

Wadehra v. Union of India (1996) 2 SCC 594, the Supreme

Court issuing time-bound orders, in addition to and not in

derogation of those passed in Wadehra‟s case, that provisions of

DMC Act, 1957, NDMC Act , 1994 and Cantonments Act, 1924

relating to sanitation, public health, and prohibition of

accumulation of rubbish be scrupulously complied with; that

charges and costs be levied for littering; that disposal of solid

waste be ensure through scientific methods; that sites for landfills

and compost plants be identified and handed over free of cost

within four weeks from date of judgment; that fresh

encroachments or unauthorized occupation of public land be

prevented; that sanitation in existing slums be improved; that

Magistrates be appointed under Sc. 20 and/or 21 Cr PC to ensure

compliance with DMC Act and NDMC Act and to try offences

relating to littering, nuisance, sanitation and public health – Till

scheme framed by authorities, Rs. 50 fine directed to be imposed

for littering [- All authorities concerned to file compliance reports

within 87 weeks - Municipalities – Delhi Municipal Corporation

Act, 1957 (66 of 1957), Ss. 42, 239-258, 350-364, 397 -

Municipalities – New Delhi Municipal Council Act, 1994 (44 of

1994), Ss. 11, 171-194, 2610280, 298-299, 308-309, 386-388,390

- Municipalities – Cantonments Act, 1924, Ss,. 118, 128-130-,


130-A, 131-134, 178 – Criminal Procedure Code, 1973, Ss. 20,21

- Environment Protection and Pollution Control -

Environment(Protection) Act, 1986, S.25.” It is further observed

that “The local authorities are constituted for providing services

to the citizens – not merely to provide employment to a few of its

inhabitants. Tolerating filth, while not taking action against the

lethargic and inefficient workforce for fear of annoying them, is

un-understandable and impermissible. Non-accountability has

possibly led to lack of effort on the part of the employees

concerned. They are perhaps sanguine in their belief that non-

performance is not frowned upon by the Government or by the

heads of the organizations and no harm will befall them.(Para

12”

d) From the report of C.P.C.B. published on November 2015

bearing title status of implementation of Plastic Waste

Management. It is very clear that State of Karnataka has not

constituted state level advisory body to monitor the

implementation of Plastic Waste Management and Handling

Rules 2011.

e) Hon‟ble High Court of Karnataka vide order dated 13.12.2012

passed in W.P. No. 24739 of 2012 took very strong note of non-

performance of waste management rules by the appropriate

authorities and took serious note that B.B.M.P. is not performing

the statutory obligation which has been cost upon them. In the

same Writ Petition vide order dated 17.12.2015 Hon‟ble High

Court passed various direction to comply with the waste

management rules by the Municipal Authorities of the state.

f) Same was the effect of the judgment passed in KARUNA CASE

WPC NO 154 of 2011 dated 10.12.2014 and also in final order

dated 15.07.2016 wherein it is crystal clear that the state has not

done anything to comply with the waste management and has in

fact only made the entire industry an scape goat and that the SC

has outrightly refused the proposition of ban on the plastics and in


fact insisted on the compliance of the MSW provisions and the

performance of the statutory duties by the appropriate authorities

in accordance with law.It is further submitted that :Karuna

Society for Animals and Nature & others Vs. Union of India &

others (W.P.-Civil) No. 154/2012was filed by one N.G.O.

seeking for issuance of appropriate directions from Hon‟ble

Supreme Court of India thereby to impose prohibition on the

storage, sale and disposal of plastic bags in all Municipalities and

Municipal corporations. Besides, some other directions relating to

plastic waste management and collection, disposal, segregation

thereof were also made.Hon‟ble Supreme took a very strong

stand and dismissed the prayer of said N.G.O. in so far as

direction for imposition of Ban/ prohibition is concerned and

made clear that it is not for the Hon‟ble Supreme Court to

monitor the functioning of concerned authorities and local

authorities to see that areas of the Local self government are not

polluted. However taking note of the issues relating to plastic

waste disposal and management issued three directions.

g) Firstly, directed Union of India and State government to take

all necessary steps in the matter in accordance with Law by

constituting committees consisting of competent persons who

have got sufficient knowledge on the subject matter.

h) Secondly, Central government to also set up an appropriate

monitoring mechanism in the matter.

i) Thirdly, Hon‟ble Supreme Court observed that respective

regional N.G.T. benches could monitor and regulate the cases

by passing/ giving orders or direction to all the concerned

statutory authorities and local self-governments in the country

for discharge of their constitutional and statutory duties.

j) This order will go long way to stop NGOs from moving

Hon‟ble Supreme Court for interference into the Laws and

policies of the appropriate government and seeking orders for

ban or prohibition. Besides, vide this order Honorable

Supreme Court made a very clear observation that the

concerned authorities should discharge their statutory and

constitutional duties, which very clearly and conclusively


means the implementation of waste management measures.

No observation has been made by court showing or

interpreting as to imposition of any prohibition and all along

the performance of duties by authorities was insisted for by

the Supreme Court.

k) Same was the import of the Order dated 03.04.2013 passed in

Ankur Gutkha case SLP(C) NO 16308/2007 where the issues

relating to non compliance by different states of the provisions

of the MSW rules 2000 was highlighted by SC.

l) That there are host of laws (Acts, regulations, guidelines, BIS

Standards) for governing of regulations the science of plastic

in its different fields. Rather than making sure the compliance

of the same the state authority has taken a most irrational,

illogical and illegal step. From the pleading submitted by

the state it is very clear that except some bald statements

nothing credible material has been submitted by them to

support their action

xiv. That the NGT could not appreciate the import of the Judgment

dated 09.05.2013 passed in Application No. 65 of 2013 by the

National Green Tribunal -As decided by this Hon‟ble Green

Tribunal in context of exercise of power made under Section 5 of

EPA 1986 in Application No. 65/2012(THC) vide judgment dated

09.05.2013 passed in Sureshbhai Keshavbhai Waghvankar & Ors.

Vs. The State of Gujarat & Ors that for the purpose of putting

embargo on use of POP(as it was prohibited there by taking

recourse to section 5 of the EPA 1986) the appropriate court has

to first determine whether the POP is an “Environment Pollutant”

within the meaning of the Act itself i.e. Section 2(b) of the

Environment(Protection) Act, 1986, which further has to be

ascertained in accordance with Rule 3, Rule 4 and Rule 5 of the

Environment(Protection) Act, 1986 and that without ascertaining

that whether POP is a pollutant, the power under Section 5 of the

Environment(Protection) Act, 1986 cannot be exercised. Paras

23, 25, 27 and 28 may kindly be referred for the purpose of the


case of the petitioner. That the impugned direction was not issued

in accordance with the prescribed procedures and it stands in

violation with the cardinal principles of law as held in In “Rao

Shiv Bahadur Singh vs. State of U.P.” (A.I.R. 1984 S.C. 322);

“Deep Chand vs. State of Rajasthan” (A.I.R. 1961 S.C. 1527)

“State of U.P. vs. Singhara Sing” (AIR 1964 SC 358) and

Ramchandra Keshav Adke and others vs Govind Joti Chavare and

Others (1973) 1SCC559 where the Apex Court upheld the ratio of

Judgment passed by the Privy Council in case of “Nazir Ahemed

vs. King Emperor” (A.I.R. 1936 P.C. 253) and Taylor vs Taylor

(1876) 1 Ch D 426 wherein it was held that when a power is given

to do a certain thing in a certain way, the thing must be done in

that way or not at all.

xv. The NGT could not appreciate the Judgment dated 08.08.2013

passed in Application NO. 26 OF 2013 (THC

) In GOODWILL

CASE by Honorable Tribunal. The judgment-dated 08.08.2013

passed by this Hon‟ble National Green Tribunal in Goodwill

Plastic Industries‟ case is distinguishable on the issues of law and

facts from the present group of cases.

The issues raised and dealt therein: The constitutionality, legality

and correctness of the Notification impugned in Goodwill case was

challenged, inter alia on following grounds ( para no 8 of the

judgment )which accordingly was dealt with by the Hon‟ble Tribunal

as below:-

a. The notification dated 30th July 2008 issued by the UT of

Chandigarh is repugnant to the Rules of 2001, 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.”

e. The other condition raised on behalf of the applicant therein is

that the Notification under Section 5 of the Environmental

(Protection) Act 1986 stands impliedly overruled by the new

Rules framed in 2011(para no 19 of judgment). and

f. Issues not raised and dealt therein: -With due respect in the

said case none of the points raised by the present batch of

matters have been adjudicated and even in the context of

Environment (Protection) Act, with due respect, the various

provisions and exercise of powers under Section 5 of the

Environment (Protection) Act. 1986 was not appreciated in

view of Section 2(5), 6.2.(e) of the Act of 1986 and Rule,4,5

and 6 and 13 of the Environment Protection Rules 1986 and

the aspect of rationality as decided in judgment dated

09.05.2013 passed in Application No. 65 of 2013(THC) by the

National Green Tribunal was not submitted and Their

Lordships have not decided those issues which have been

raised by way of present batch of matters and, therefore, with

due respect, the said judgment passed in Goodwill case is not

standing in the way of submissions of the petitioner made

before this Hon‟ble Tribunal in the present group of matters.


Notwithstanding anything it is submitted that –the Law declared

in Goodwill is not applicable in the present case. The

Goodwill case has not been decided on the issues and

submissions raised and made in the present batch of matters

and therefore it does not constitute a judgment with persuasive

effect. Besides, it is not a precedent (within the meaning of

Constitution of India as the Tribunal does not constitutes a

court of record) and not binding on the another bench of the

same tribunal. Besides, the Goodwill case is therefore

completely distinguished on questions of law from the present

set of cases. The observation against science of plastic

mentioned in Goodwill case is of opinion of the bench which

at the maximum can constitute an obiter dictum and is not

relevant for the present series of cases. On basis of law

declared on the issues of ratio decidendi and precedents on the

following judgments the Goodwill case is fit to be NOT relied

upon:-

Laxmi Devi Vs. State of Bihar and Ors, 2015 (10) SCC 241.

Arun Kumar Aggarwal Vs. State of Madhya Pradesh and Ors,

AIR 2011 SC 3056.

Oriental Insurance Co. Ltd. Vs. Smt. Raj Kumara and Ors, AIR 2008

SC 403.

Mohandas Issardas and Ors. Vs. A.N. Sattanathan and Ors, AIR

1955 Bom 113.

Dadu Dayalu Mahasabha, Jaipur (Trust) Vs. Mahant Ram Niwas

and Anr, AIR 2008 SC 2187.

The rules regarding ratio and precedent have been laid down in all

these authorities.

G. That the NGT could not appreciate the laws relating to THE

PREVENTION OF CRUELTY TO ANIMALS ACT, 1960 (59

OF 1960) AND RULES FRAME THEREUNDER- the laws


speak as below:-

Preamble to the Act:-

It is enacted to prevent the infliction of unnecessary pain or

sufferings on animals.

Section 2(a) defines „Animal‟.

Section 2(d) defines „Domestic animal‟.

Section 2(f) defines „Owner‟.

Section 2(i) defines „Street‟.

Section 3 defines „Cast‟ mandatory duty on the persons having

charge of animals.

Section 4-8: Establishment of Animal Welfare Board of India.

Section 9: Enacts the function of the Board.

Section 10: Power of board to make regulation.

Section 11: „Treating animals cruelly‟ is defined. The relevant

clauses are 11(h), 11(i) and 11(j). Section 11(2) makes provision

for deemed commission of offences. Section 11(1) after sub

clause (o) prescribes the punishment which is further elucidated

in 11(2).

The Prevention of Cruelty to Animals (Application of fines) rules

1978 was framed to regulate the fines.

The Prevention of Cruelty to Animals (registration of cattle

premises) rules 1978 was framed by the Central Government and

made applicable to cities or towns which have the population

exceeding 1 Lack. That the NGT could not appreciate the ratio

and directions passed by Honorable supreme Court in Milkmen

Colony Vikas Samiti Vs. State of Rajasthan and Ors. 2007 (12)

SCC 583. Supreme Court has dealt the issues relating to death of

cattle due to consumption of plastic bags and issued various


directions. (Para No. 27-32). Besides, the NGT Could not

appreciate that UNDER THE The prevention of Cruelties against

Animals Act( PCA), 1960 and by taking recourse to section 38 of the

PCA 1960 the Central Government has framed several rules including:

(a) The Prevention of Cruelty to Draught and Pack Animals Rules,

1965

(b) The Prevention of Cruelty to Animals (Licensing of Ferries) Rules,

1965

(c) The Performing Animals Rules, 1973

(d) The Performing Animals (Registration) Rules, 2001

(e) The Transport of Animals Rules, 1978

(f) The Prevention of Cruelty to Animals (Application of Fines) Rules,

1978

(g) The Prevention of Cruelty to Animals (Registration of Cattle

Premises) Rules, 1978

(h) The Prevention of Cruelty to (Capture of Animals) Rules, 1979

(i) The Prevention of Cruelty to Animals (Transport of Animals on

Foot) Rules, 2001, which prevents transportation of animals on foot.

(j) The Prevention of Cruelty to Animals (Slaughter House) Rules,

2001

(k) The Prevention of Cruelty to Animals (Establishment and

Regulation of Societies for Prevention of Cruelty to Animals) Rules,

2001

(l)The Experiments on Animals (Control and Supervision) Rules, 1968

, exclusively for the protection of animals from different type of

cruelties and atrocities.AND THUSThe entire issues relating to cattle

can very well be addressed if the state starts to comply these rules.

6. The Appellants state that he has not filed any other petition or appeal

against the impugned Judgement and Order.

7. That the Appellant submits that the Appellant has no other remedy

against the final judgment/ impugned Order except to approach this


Hon‟ble Court by way of the present Appeal under Section 22 of the

National Green Tribunal Act 2010.


8. That the impugned order dated 13.01.2017 was received by the

Appellant‟s Counsel on……..2017. Hence, the present is Appeal

within the prescribed period of limitation.

P R A Y E R

It is, therefore, most respectfully prayed that this Hon‟ble Court

may graciously be pleased to

a) Admit and allow this Appeal and set aside the impugned

judgment / final Order dated 13.01.2017 passed by the

National Green Tribunal (South Zone bench), Chennai in

Appeal No. 119 of 2016; and

b) Pass such other or further orders, as this Hon‟ble Court may

deem just, necessary, expedient and in the interest of justice

in the facts and circumstances of the case.

Filed by:-

DRAWN BY

Kundan Kr Mishra

Ajay Kumar

Kundan Kr. Mishra


Place: New Delhi

Filed on: .03.2017.




I.A. No. of 2017

IN

Civil Appeal No. ________ of 2017.

In the matter of:


VERSUS


AN APPLICATION FOR STAY OF THE IMPUGNED

JUDGMENT/ FINAL ORDER DATED 13.01.2017 PASSED BY

THE NATIONAL GREEN TRIBUNAL (SOUTH ZONE BENCH),

CHENNAI IN APPEAL NO. 119 OF 2016

To,

The Hon‟ble the Chief Justice of India and

His Companion Judges of the Supreme Court of India


Appellant above named

MOST RESPECTFULLY SHOWETH:-

1. That the appellant prefers the present appeal against the impugned

judgment and final order dated 13.01.2017 passed by the National

Green Tribunal (South Zone Bench), Chennai in Appeal No. 119 of

2016 whereby the NGT dismissed the appeal in grave error of facts

and law and failed to exercise its jurisdiction.

2. That impugned the final Order dated 13.01.2017 passed by the

National Green Tribunal (South Zone Bench), Chennai in Appeal

No. 119 of 2016 affect the Appellant directly as it is intended to

impose blanket ban on Plastic products Ben (which is quite vague


term and will effectively cover the entire industry). That the

contents and averments mentioned in the main appeal and

accompanying other applications may kindly be treated as part of

the present application also and the same is not repeated herein for

the sake of brevity. That the entire industry would suffer irreparable

injury in case the direction for stay is not granted. That the balance

of convenience also lies in the favor of the petitioner and that the

damages will not be compensated in money terms if stay is not

granted.

3. That the case of the Appellant has sufficient merit and he has all

chances to succeed in the case and that non-consideration of the

present petition will cause irreparable injury to the Appellants.

P R A Y E R

In the premises set forth above, it is therefore, most respectfully

prayed that this Hon'ble Court may graciously be pleased to:

(i) Stay the order dated 13.01.2017 passed by the National

Green Tribunal (South Zone Bench), Chennai in Appeal

No. 119 of 2016.

(ii) Pass such other order or orders as this Hon'ble Court may

deem fit and proper in the facts and circumstances of the

present case;

AND FOR THIS ACT OF KINDNESS THE APPELLANT SHALL

EVER PRAY AS DUTY-BOUND

Filed By:-

(KUNDAN KUMAR MISHRA)


Dated: 28.03.2017

Place: New Delhi.




I.A. No. of 2017

IN

Civil Appeal No. ________ of 2017.

In the matter of:


VERSUS


AN APPLICATION FOR EXEMPTION FROM FILING

CERTIFIED COPY OF THE IMPUGNED JUDGMENT/ FINAL

ORDER

To,

The Hon‟ble the Chief Justice of India and

His Companion Judges of the Supreme Court of India


Appellant abovenamed

MOST RESPECTFULLY SHOWETH:-

1. That the appellant prefers the present appeal against the impugned

judgment and final order dated 13.01.2017 passed by the National

Green Tribunal (South Zone Bench), Chennai in Appeal No. 119 of

2016 whereby the NGT dismissed the appeal in grave error of facts

and law and failed to exercise its jurisdiction.

2. That because of some urgent and unanticipated and unavoidable

circumstances the Appellant could not obtain the certified copy of

the impugned judgment / final Order dated 13.01.2017 passed by


the 2017 passed by the National Green Tribunal (South Zone

Bench), Chennai in Appeal No. 119 of 2016 and proceeded with

the true typed copy thereof. The Appellant shall abide by the

direction of honorable court and will submit the certified copy as

and when directed by the honorable court. That the contents of the

memo of appeal may kindly be read as part and parcel of the

present application also and the same is

not repeated herein for The sake of brevity.

3. That the case of the Appellant has sufficient merit and he has all

chances to succeed in the case and that non-consideration of the

present petition will cause irreparable injury to the Appellants.

P R A Y E R

In the premises set forth above, it is therefore, most respectfully

prayed that this Hon'ble Court may graciously be pleased to :

(i) Exempt the Appellant from filing certified copy of the

Impugned judgment/ final Order dated 13.01.2017 passed

by the National Green Tribunal (South Zone Bench),

Chennai in Appeal No. 119 of 2016 and

(ii) Pass such other order or orders as this Hon'ble Court may

deem fit and proper in the facts and circumstances of the

present case;

AND FOR THIS ACT OF KINDNESS THE APPELLANT SHALL

EVER PRAY AS DUTY-BOUND

Filed By:- (KUNDAN KUMAR


MISHRA)

Advocate for the

Appellant

Dated: .03.2017Place:

New Delhi.
