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
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17.
Bar & Bench (www.barandbench.com)
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.
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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
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IN THE SUPREME COURT OF INDIA
Civil Appellate Jurisdiction
Civil Appeal No. of 2017
In the matter of:
Karnataka State Plastic Association …..Appellant
VERSUS
The State of Karnataka & Ors. …..Respondents
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
Bar & Bench (www.barandbench.com)
LISTING PROFORMA
IN THE SUPREME COURT OF INDIA
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
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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
Bar & Bench (www.barandbench.com)
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
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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
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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
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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:-
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“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
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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
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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.----
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“(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……..”
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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
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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
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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.
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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
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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
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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
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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
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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.
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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/
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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
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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.
IN THE SUPREME COURT OF INDIA
Civil Appellate Jurisdiction
Civil Appeal No. of 2017
(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:
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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
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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.
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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
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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.
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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
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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.
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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
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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,
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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
Bar & Bench (www.barandbench.com)
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
Bar & Bench (www.barandbench.com)
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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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,
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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
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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.
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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.
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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
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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
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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
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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)
Almitra H. Patel v. Union of India, (2003) 12 SCC 254
(14/01/2003)
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Almitra H. Patel v. Union of India, (2000) 8 SCC 19
(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)
Almitra H. Patel v. Union of India, (2000) 2 SCC 166
(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
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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-,
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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
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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
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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
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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
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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.
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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
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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
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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
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Hon‟ble Court by way of the present Appeal under Section 22 of the
National Green Tribunal Act 2010.
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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
Advocate for the Appellant
Place: New Delhi
Filed on: .03.2017.
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IN THE SUPREME COURT OF INDIA
Civil Appellate Jurisdiction
I.A. No. of 2017
IN
Civil Appeal No. ________ of 2017.
In the matter of:
Karnataka State Plastic Association …..Appellant
VERSUS
The State of Karnataka & Ors. …..Respondents
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
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. 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
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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)
Advocate for the Appellant
Dated: 28.03.2017
Place: New Delhi.
Bar & Bench (www.barandbench.com)
IN THE SUPREME COURT OF INDIA
Civil Appellate Jurisdiction
I.A. No. of 2017
IN
Civil Appeal No. ________ of 2017.
In the matter of:
Karnataka State Plastic Association …..Appellant
VERSUS
The State of Karnataka & Ors. …..Respondents
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
The humble Petition of the
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
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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
Bar & Bench (www.barandbench.com)
MISHRA)
Advocate for the
Appellant
Dated: .03.2017Place:
New Delhi.
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