BEFORE THE NATIONAL GREEN TRIBUNAL
                   PRINCIPAL BENCH
                      NEW DELHI
                       ..............

APPLICATION NO. 26 OF 2013 (THC) In the matter of

1. Goodwill Plastic Industries, Plot No.49, Industrial Area Phase II, Chandigarh.

2. Hardeep Industries, Plot No.724, Industrial Area Phase II, Chandigarh.

..............Applicants Versus

1. Union Territory of Chandigarh Through its Secretary (Environment), Sector 9, Chandigarh.

2. Municipal Corporation Through its Commissioner, Sector 17, Chandigarh.

3. Chandigarh Pollution Control Committee Through its Chairman-cum-Adviser, Chandigarh Administration, Sector 9, Chandigarh ................Respondents Counsel for Applicants :

Mr. Aman Preet, Advocate Counsel for Respondents :

Mr. Shubham Bhalla, Advocate, for Respondents No.1 & 3 AND APPLICATION NO. 53 OF 2013 (THC) In the matter of

1. Jarnail Singh S/o S. Hazoor Singh, 906, Sector 65, S.A.S. Nagar, Mohali (Pb.) 1

2. Karnail Singh, S/o S. Jagir Singh, 2074, Phase X, Mohali (Pb.) ..............Applicants Versus

1. Union Territory of Chandigarh Through its Secretary (Environment), Sector 9, Chandigarh.

2. Municipal Corporation of Chandigarh Through its Commissioner, Sector 17, Chandigarh.

.................Respondents Counsel for Applicants :

Mr. Aman Preet, Advocate Counsel for Respondents :

Mr. Shubham Bhalla, Advocate, for Respondents No.1 & 3 ORDER/JUDGMENT PRESENT :

Hon'ble Mr. Justice Swatanter Kumar (Chairperson) Hon'ble Justice U.D. Salvi, (Judicial Member) Hon'ble Dr. D.K. Agrawal (Expert Member) Hon'ble Mr. P.S. Rao (Expert Member) Hon'ble Mr. Ranjan Chatterjee (Expert Member) Dated : August 8, 2013 JUSTICE SWATANTER KUMAR (CHAIRPERSON) On 30th July, 2008, the Administrator, Union Territory of Chandigarh, in exercise of the powers vested in him under Section 5 of the Environment (Protection) Act, 1986 (for short the "Environment Act") issued the following notification prohibiting 2 usage, manufacture, storage, import, sale or transportation of polythene/plastic carry bags in the U.T. of Chandigarh:

"NOTIFICATION Dated 30.7.2008 No.ED/2008/684 whereas draft notification was issued by the Administrator, Union Territory, Chandigarh in exercise of powers conferred on him under Section 5 of Environment (Protection) Act, 1986 (29 of 1986) read with Govt. of India's notification bearing No.S.O.667(E) dated the 10th September, 1992 which was published in the Chandigarh Administration's Gazette (Extraordinary) vide No.ED/2008/125 dated 11 February, 2008 inviting th objections from persons likely to be affected thereby within 60 days from the date of publication of the said draft notification.

And whereas objections and suggestions received within the aforesaid period have been duly considered by the Chandigarh Administration. Now, therefore, the Administrator, Union Territory, Chandigarh in exercising the delegated powers, under Section 5 of the Environmental (Protection) Act, 1986 hereby directs that no person including a shopkeeper, vendor, wholeseller or retailer, trader, hawker or rehriwala etc., shall use polythene/plastic carry bags for supply of goods in polythene/plastic carry bags and further directs that no person shall manufacture, store, import, sell or transport polythene/plastic carry bags in Union Territory, Chandigarh. The Administrator, Union Territory, Chandigarh hereby further directs that the following Officers shall implement these orders related to use, storage, import, selling, transportation and disposal and authorizes them to file complaints under Section 19 of the Environment (Protection) Act, 1986, namely :-

1. Deputy Commissioner, U.T. Chandigarh.

2. Director Environment, Chandigarh Administration.

3. Sub Divisional Magistrates in their respective jurisdiction.

4. Joint Commissioner-I & II, Municipal Corporation, Chandigarh.

5. District Food & Supply Officer, Chandigarh Administration.

6. Inspectors, Food & Supply Department, U.T. Chandigarh.

7. Medical Officer Health, Municipal Corporation, Chandigarh.

8. Sanitary Inspectors o/o Medical Officer Health, Municipal Corporation, Chandigarh.

9. Food Inspectors of Health Department, U.T. Chandigarh.

Deputy Commissioner, U.T. Chandigarh shall act as the co-ordinator to implement above orders related to ban on the use, storage, import, selling, transportation & disposal of polythene/plastic carry bags.

The Administrator, Union Territory, Chandigarh hereby, further directs that the following Officers shall enforce above orders related to manufacture and also authorizes them to file complaints under Section 19 of the Environment (Protection) Act, 1986, namely :-

1. Deputy Commissioner, U.T. Chandigarh.

2. Director Environment, Chandigarh Administration.

3. Member Secretary, Chandigarh Pollution Control Committee.

4. Scientist 'B', Chandigarh Pollution Control Committee.

5. Assistant Environmental Engineer, Chandigarh Pollution Control Committee.

Member Secretary, Chandigarh Pollution Control Committee shall act as the co-ordinator to implement the ban on manufacture of polythene/plastic carry bags in U.T. Chandigarh.

This notification shall come into force with effect from 2nd October, 2008.

This supersedes the earlier notification bearing No.ED/2003/543 dated 16th Sept., 2003."

2. The constitutionality, legality and correctness of the above notification has been challenged by the applicants [Applications No. 26/2013(THC) and 53/2013(THC)]. The challenge to the notification is based on the factual premise and grounds as stated hereinafter. Jarnail Singh and Karnail Singh claim to be engaged in manufacture and supply of virgin polythene bags which are not 4 recycled ones, virgin/natural food grade HM, LLDPE, LDPE poly bags, plastic sheets, plastic rolls and all kinds of industrial packaging material under the name and style of M/s Goodwill Plastic Industries. According to the applicants, they do not deal with recycled plastic/polythene. They are carrying on the activity of manufacture and supply of the same in the UT of Chandigarh, States of Punjab, Haryana, Himachal Pradesh and even in some other parts of the country. The products manufactured by them strictly comply with the specifications and thickness standards, as laid down in the relevant rules and/or notifications. Further, it is the case of the applicants that they established this industry after taking loan and availing credit limits for working capital from different financial institutions. The applicants as well as the workers under them are dependent upon this industry for their livelihood. Besides, they are also registered with the Chandigarh Pollution Control Committee for manufacture of plastic bags and containers. They are manufacturing virgin polythene bags of thickness not less than 30 microns and of size not less than 8"x 12". They were granted the consent in terms of Section 25(4) of the Water (Prevention and Control of Pollution) Act, 1974 (for short the "Water Act") and Section 21(4) of the Air (Prevention and Control of Pollution) Act, 1981 (for short the "Air Act"). According to the applicants, they are carrying on their business strictly in terms of the consent orders and have not violated the same ever. The plastic manufacture, sale and usage is governed by the Plastic Manufacture, Sale and Usage Rules, 1999, as amended in 2003, 5 which bars manufacture, stocking, distribution, sale, etc. of virgin or recycled plastic bags of dimension less than 8" x 12" and thickness of 20 microns. These rules do not ban the production, sale and use of polythene bags. On 10th February, 1992, the Chandigarh Administration issued a notification under Section 5 of the Environment Act providing that the thickness of the polythene bags shall not be less than 30 microns while maintaining the same size i.e. not less than 8" x 12". This continued for a number of years and on 6th December, 2005, the Chandigarh Administration issued a draft notification proposing a total ban on the manufacture and use of polythene/plastic carry bags. Various objections to the draft notification were filed and it had been brought to the notice of the authorities concerned that the solution to the pollution resulting from littering of plastic bags lay in proper collection, segregation and safe disposal of polythene bags and not in banning manufacture, sale and use of polythene carry bags. Referring to the Municipal Corporation, Chandigarh's activity to set up Sehaj Safai Kendra, it was stated that civic agencies are unable to handle and dispose of solid waste including casual carry bags effectively which results in the sewerage system being choked besides the same being detrimental to the health of animals due to consumption of such polythene bags. Objections were also raised that the general public would be deprived of reusable polythene like plastic bags and a complete ban on which is bound to produce negative results and implications like unemployment, hurting entrepreneurs, etc. 6

3. The Administration of UT of Chandigarh, after considering these objections, found them without substance, primarily on the ground that human health, animal life and environmental concerns are of much greater value than the economic interests addressed by the applicants. It is the case of the applicants that the Chandigarh Administration, contrary to its earlier stand based on proper analysis, that the solution to the pollution caused from littering of plastic bags lies in proper collection, segregation and safe disposal of the same and not by imposing a complete ban, issued the notification dated 11th February, 2008 proposing to completely ban the manufacture and use of polythene carry bags in the UT of Chandigarh and invited objections in regard to the same. Various objections thereto were filed. Jarnail Singh along with Karnail Singh filed the Writ Petition No. 6098 of 2008 challenging the draft notification before the High Court of Punjab and Haryana at Chandigarh. However, this writ petition was withdrawn with liberty to challenge the final notification, as and when published. On 30 th July, 2008, the Chandigarh Administration issued the final notification imposing a complete ban on manufacture and use of polythene carry bags in the UT of Chandigarh.

4. Both these applicants filed another writ petition before the same High Court challenging the final notification vide Writ Petition No. 15230 of 2008 praying for a direction to the respondents to discharge their statutory duties under the Municipal Solid Wastes (Management and Handling) Rules, 2000 (for short the "MSW Rules").

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5. During the pendency of this Writ Petition, the MSW Rules were amended in 2011. In fact the Plastic Waste (Management and Handling) Rules, 2011 (for short the "Rules of 2011") superseded the Plastic Manufacture, Sale and Usage Rules, 1999. Under the amended Rules of 2011, manufacture, stocking, distribution and sale of carry bags made of virgin or recycled or compost plastic of not less than 40 microns were permitted.

6. Relying upon the Rules of 2011 of the Ministry of Environment and Forests (for short the "MoEF"), the partnership firm through its partner, Jarnail Singh, along with another concern, M/s Hardy Industries filed another Writ Petition, being W.P. No. 22691 of 2012 challenging the same notification dated 30th July, 2008 with reference to the Rules of 2011.

7. Both the above petitions were transferred by the High Court of Punjab and Haryana to this Tribunal. The W.P. No. 15230 of 2008 came to be registered as Application No.53 of 2013 (T HC) while the W.P. No. 22691 of 2012 as Application No.26 of 2013 (T HC). Since both these writ petitions challenged the same notification on similar facts, however, on somewhat different grounds, and in fact, common arguments were addressed by the learned counsel on both these applications, it will be appropriate for the Tribunal to dispose of both these applications by a common judgment.

8. Before we advert to the discussion on the case advanced by the respondents in their pleadings, it would be proper for us to 8 notice the grounds of challenge raised by the applicants to the notification dated 30th July, 2008. They have contended that -

(a) the notification dated 30th July, 2008 issued by the UT of Chandigarh is repugnant to the Rules of 2011, and thus would be inoperative;

(b) in terms of the Rules of 2011, a person is entitled to carry on the business of manufacture and sale of plastic bags of prescribed thickness and this right to carry on the business cannot be taken away by the notification of 30th July, 2008;

(c) there is no nexus between the notification and the object or intent sought to be achieved thereof in relation to control of pollution and thus, the notification cannot stand the scrutiny of law; and

(d) the notification in question suffers from the vice of discrimination inasmuch as if plastic is environmentally hazardous, then putting a ban only on manufacture, sale and use of plastic 'carry bags' is irrational and discriminatory. Also the ban has been imposed only in the UT of Chandigarh vide the notification dated 30th July, 2008 while no such ban has been imposed or is in force in the adjoining districts of Punjab and Haryana, which are practically part of the UT, Chandigarh.

9. The respondents, during their submissions, not only refuted the above contentions but also stated in their pleadings that the effects of plastic bags on environment are quite devastating. The ban in terms of the notification dated 30th July, 2008 is evidently in 9 public interest, and is therefore, clearly permissible and protected under Article 19(6) of the Constitution of India. The business and commercial interests of a few manufactures cannot be allowed to operate to the detriment of the public at large, especially where interest of the future generations is involved. The main problem with plastic bags is that after being sold, they normally end up as trash whereupon they either come back to the landfill or are burnt. Either of these is a very poor solution for the environment and burning the plastic results in emission of toxic gases that harm the environment and increase the level of Volatile organic compounds (VOCs) in the air. Plastic bags litter all around. They are non-bio-degradable and thus stay in the environment for a very long time. It results into a major problem of uncontrollable littering, thereby leading to unhygienic conditions and environmental pollution. The coloured plastic is even more harmful in all these aspects. The plastic is reused in one form or the other which even makes it environmentally more serious and vulnerable. According to the respondents, studies have shown that there are very few plants that actually recycle plastic bags and most of the public authorities either burn them or send them to the landfill sites. Environmentally, cloth bags are a better alternative and are even becoming an attractive proposition among environmental supporters. The plastic/polythene carry bags result in blockage of drains, pipelines and are even life threatening for the animals who eat them along with other wastes.

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10. According to the respondents, in the draft notification No. ED/2008/125 dated 11th February, 2008, complete reasons have been given by the Chandigarh Administration for the proposed imposition of the ban and the ban imposed ultimately is in consonance with Section 5 of the Environment Act. The partial ban earlier permitting the restricted use of micro plastic bags had failed to achieve the desired results. The protective and ameliorated impact of the impugned ban on environment, especially in the long term and the relative importance and efficacy of the ban from the perspective of sustainable development cannot be disputed. In order to prevent environmental hazards, there was a need to adopt dynamic environmental protective measures and the same had been taken by virtue of imposition of the ban in question. The earlier restrictions and regulatory measures imposed on the usage of plastic bags have not achieved the desired results and a complete ban on such bags had become inescapable and inevitable. To prevent environmental degradation, it is the duty of the authorities to adopt highly dynamic, yet appropriate measures, evolved with experience and continuously responding and adapting to the felt necessities of time, at the same time. Such duty is imposed upon the Government authorities concerned in terms of Articles 48-A, 51- A(g) and 21 of the Constitution of India. The issuance of the Rules dated 4th February, 2011, superseding the earlier Rules of 1999 in relation to plastic bags is not disputed by the respondents. However, it is stated that the Rules of 2011 were not intended to tinker with or lift the ban imposed by the notification of 30th July, 11 2008. The Administrator, UT, Chandigarh, has been vested with the powers of issuing appropriate orders and directions in terms of Section 5 of the Environment Act, vide notification dated 10th September, 1992 issued by the Government of India. The Administrator, in furtherance to his delegated powers, had issued the notification dated 30th July, 2008 which does not suffer from any infirmity and is not liable to be quashed.

Discussion

11. A common legal thread runs amongst all the contentions raised on behalf of the applicants. Thus all these contentions can be dealt with by the Tribunal collectively.

12. The first and the foremost question that we are called upon to answer is whether the notification dated 30th July, 2008 is repugnant to or in conflict with the Rules of 2011. If so, then to what effect?

13. The notification dated 30th July, 2008 was issued by the Administrator, UT of Chandigarh in exercise of the powers vested in him under Section 5 of the Environment Act, read with the notification of 10th September, 1992 issued by the Government of India. This notification had been issued by following the due process under the law. Objections to the draft notification had been invited, considered and upon due application of mind, the final notification was issued. There is no challenge before us with regard to the procedure adopted by the Administrator, UT of Chandigarh, in the issuance of such notification. However, there is a challenge 12 with regard to its legality and effect. The power under Section 5 of the Environment Act states that notwithstanding anything contained in any other law, however, subject to the provisions of the Environment Act, the Central Government is vested with the power to issue directions to any person, officer or authority, including directions of closure, prohibition or regulation of any industrial operation or process, and stoppage or regulation of supply of electricity or water or other services to such industry. Such directions can be prohibitory or preventive in their content and effect. The Explanation to Section 5 of the Environment Act is inclusive of the powers of wide amplitude that are vested in the authority. The power to issue directions, as contemplated under Section 5 of the Environment Act, is to achieve a different object and is not a supervisory or a regulatory power, as are contemplated under Sections 18 and 20A of the Water Act and the Air Act respectively. The power to issue directions is not equitable to the powers vested in the respective authorities for permitting the carrying on of a business. By issuance of appropriate directions, it is primarily to prevent environmental hazards. In other words, Section 5 of the Environment Act relates to the role of the Central Government where any environmental hazard has occurred or is apprehended to occur as a result of any polluting activity through an industrial activity, operation or process. Such direction can be issued to any person, authority or officer who shall be bound to comply with the same.

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14. The emphasis on exercise of powers under Section 5 of the Environment Act is polluter centric. These powers could be exercised by invoking precautionary principle, polluter-pays principle or could even be prohibitory where the situation so demands. In the present case, the contention of the UT Administration is that they had conducted studies and tried various other measures despite which they failed to control the environmental hazards resulting from the manufacture and sale of plastic carry bags, which resulted in issuance of the above notification, has merits. The closure, prohibition or regulation referred to in Explanation to Section 5 of the Environment Act is relatable to an industrial activity, operation or process raising environmental issues or hazards. It is in exercise of this power that the notification dated 30th July, 2008 has been issued by the competent authority. On the other hand, the scheme under Sections 3, 6 and 25 of the Environment Act is distinct. The Environment Act has been enacted with the object of protection and improvement of the environment. The ethos of enactment of this legislation was to prevent environmental degradation on the one hand and ensure improvement of the same on the other. This was directly relatable to the United Nations Conference on Human Environment held at Stockholm in 1972. Environment includes water, air and land and the inter-relationship which exists among and between these and human beings, other living creatures, plants, micro-organism and property. In furtherance to this legislative intent, the legislature vested the Central Government 14 with the powers to take measures to protect and improve environment by enacting Section 3 of the Environment Act. Section 3(1) of the Environment Act vests the Central Government with powers to take all such measures as may be necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. Section 3(2) of the Environment Act describes the inclusiveness provided in such generic powers contained under Section 3(1) of the Environment Act besides laying down standards for the quality of environment, procedures and safeguards for prevention of accidents, laying down procedures and safeguards for handling of hazardous substances, establishment or recognition of environmental laboratories, laying down standards for emission or discharge of environmental pollutants from various sources, and importantly planning and execution of nation-wide programmes for prevention, control and abatement of environmental pollution. Section 6 of the Environment Act concerns itself with the power of the Central Government to make rules in regard to all matters as stipulated in Sections 3 of the Environment Act. Section 6(2) of the Environment Act indicates the fields for which rules can be framed by the Central Government. Inter alia rules can be framed in regard to the standards of quality of air, water or soil; the maximum allowable limits of concentration of various environmental pollutants; procedures and safeguards including prohibition and restrictions on the handling of hazardous substances and also on the location of industries and the carrying on of processes and 15 operations in different areas. Similarly, Section 25 of the Environment Act empowers the Central Government to frame rules for carrying out the purposes of the Act. Section 25(2) of the Environment Act then specifies the matters in relation to which it can frame rules. The power to frame rules under Section 6 of the Environment Act restricts itself to regulate environmental pollution while Section 25 of the Environment Act gives much wider power to frame rules as they could relate to any subject in relation to carrying out the purposes of the Act.

15. The cumulative reading of Sections 3, 6 and 25 of the Environment Act and the scheme underlying these provisions clearly show that these provisions are regulatory and operate in a specific field. The purpose and limitation of those fields are clearly postulated under these provisions. Of course, there is residuary power under Section 3(2)(xiv) of the Environment Act which gives wide power to the Central Government with regard to taking of measures deemed necessary or expedient for the purposes of securing the effective implementation of the purposes of the Act. Similarly, Section 25 of the Environment Act gives such power for achieving the purposes of the Act, the protection and improvement of the environment, being the very purpose of the Act, and to ensure proper implementation of the various provisions of the Act in that regard.

16. It is with reference to these provisions that the Rules of 2011 were framed by the Government in exercise of its power of delegated legislation. Every delegated legislation has to be in consonance 16 with the principal statute and cannot run contra thereto. These rules were framed in supersession of 1999 Rules and were intended to provide parameters for regulating the production, manufacture, etc. of various plastic/polythene products. In terms of Rule 2 of the Rules of 2011, the provisions of Rules 5 and 8 of the Rules of 2011 shall not apply to the manufacture of carry bags exclusively for export purposes. 'Carry bags' means all plastic bags used to carry commodities including self-carrying features. 'Plastic' has been defined to mean material which contains as an essential ingredient, a high polymer and which at some stage in its processing into finished products can be shaped by flow. 'Plastic waste' means any plastic product such as carry bag pouches or multi-layered plastic pouch or sachet etc. which have been discarded after use or after their intended life is over. The 'virgin plastic' means plastic material which has not been subjected to use earlier and has also not been blended with scrap or waste.

17. Rule 5 of the Rules of 2011 spells out the conditions which are to be observed during the course of manufacture, stacking, distribution, sale and use of carry bags and sachets. In terms of Rule 5 (c), no person shall manufacture, stack or distribute any carry bags made of virgin or recycled or compostable plastic which is less than 40 microns in thickness. This very rule emphasizes certain other conditions in relation to the use of plastic sachets and other packets for different articles specifying different standards. Rule 9 of the Rules of 2011 deals with registration of manufacturers and recyclers. Under Rule 9 (c) of the Rules of 2011, no person 17 shall manufacture plastic carry bags or recycled plastic bags or multi-layered plastic pouch or sachet without obtaining the registration certificate from the SPCB or PCC, as the case may be, prior to the commencement of production. The scheme of these rules is that a person who wishes to commence or enter into the field of manufacture, storage, sale of multi-layered plastics, plastic carry bags has to get registered and upon registration, the production, sale and storage of such material shall be regulated by the various provisions as afore-indicated. If a person does not obtain registration in terms of Rule 9(c) of the Rules of 2011, such person then, cannot carry on any of these activities. This rule thus, states conditions that are precedent to the carrying on of such business. In consonance with the provisions of the Environment Act all these provisions of the Rules of 2011 specify regulatory measures, compliance to which is essential for the grant of registration in terms of these Rules. In contra-distinction to this, the directions issued under Section 5 of the Environment Act are primarily mandatory and are intended not only to act as a regulatory measure but also as preventive and prohibitory measure. They are in exercise of extraordinary powers vested in the Central Government where in exercise of its powers and performance of its functions under the Environment Act it issues such directions. These directions are primarily intended to meet emergencies or exigencies of environment. Their primary aim is to protect the environment and ensure that the environment degradation does not take place and no environmental hazards are caused. Wherever 18 environmental pollution or certain pollutant activity occurs which is found to apprehend environmental hazards, the directions to the extent of closure and prohibition are issued. The Rules of 2011 and the directions contemplated under Section 5 of the Environment Act, as contained in the notification dated 30th July, 2008 operate in distinct and independent fields. There is no conflict between the two. The directions may come into play only when the first phase of grant of registration and permission to carrying on of such activity has been completed. These provisions are not in conflict with each other but are complimentary and supplementary to each other. Both of them aid/re-enforce the principal object of the Act, i.e. protection and improvement of the environment.

18. Article 19(1)(g) of the Constitution gives fundamental right to the citizen to practise any profession or carry on any occupation, trade or business. The freedom guaranteed under this Article is not free of restrictions or limitations. Normally the restrictions can be in two different forms - one is by way of reasonable restrictions to which the right is made subject to by the Constitution itself, while the other would be by virtue of law that may be enacted by the State. The State is competent to make laws relating to the professional or technical qualifications necessary for practising any profession or carrying on of any occupation, trade or business. The requirement is that such restriction has to be reasonable and must be as a result of the law enacted by the State. The right to carry on trade is thus not an absolute right but is a conditional right and is subject to such restrictions as may be placed. The Rules of 2011 19 contemplate certain requirements and restrictions subject to compliance of which a person can be permitted to be registered as a manufacturer, stockist or seller of the plastic goods while Section 5 of the Environment Act provides for reasonable restrictions in the larger public interest and in furtherance to the law enacted by the Parliament. Therefore, the contention that it is an unreasonable restriction is not sustainable. These restrictions and/or prohibitions operate in different fields on distinct basis, leading to varied consequences.

19. The other contention raised before us is with regard to the notification of 30th July, 2008 being repugnant to the notified Rules of 2011. While referring to Article 254 of the Constitution, it is contended that the notification of 30th July, 2008 is in conflict with the Rules of 2011 framed by the Central Government. It is contended that the notification of 30th July, 2008 has been notified in furtherance to the delegated legislative powers, the same being repugnant to the Central law and hence the Central law would prevail and thus, the notification issued by the UT Administration of Chandigarh would be void.

20. Article 254 of the Constitution comes into play only when the law framed by the State legislature is repugnant to any law made by the Parliament which the Parliament is competent to enact or to any provision of an existing law with respect to any of the matters enumerated in the Concurrent List, then unless the State law is saved in terms of Article 254(2), the law made by the State shall, to the extent of repugnancy, be void. List III of the Seventh Schedule 20 to the Constitution specifies the fields falling under the Concurrent List. It does not contain any entry with regard to environment though by way of the 42nd Amendment Act, which came into effect from 3rd January, 1977, 'Forests' and 'Protection of wild animals and birds' were added under Entries No.17A and 17B respectively. The Concurrent List does not contain any residuary power of the Parliament. Similarly, List I (Union List) of the Seventh Schedule also does not contain any specific entry in relation to environment. However, there is the residuary power in terms of Entry 97 of the said List which empowers the Union Parliament to enact laws on any other matter not enumerated in List II or List III including any tax not mentioned in either of these Lists. List II (State List) also does not contain any specific entry in relation to environment but for Entry 6 of the said List which deals with public health and sanitation; hospitals and dispensaries. It may be useful to notice here that in terms of Article 243W of the Constitution relating to powers, authority and responsibilities of Municipalities, etc. under Entry 6 of the 12th Schedule to the Constitution, subjects of public health, sanitation, conservancy and solid waste management are specified. Article 243W of the Constitution deals with the powers, authority and responsibilities of municipalities and subject to the provisions of the Constitution, the legislature of a State, may by law, endow the municipalities with such powers and authority as may be necessary to enable them to perform the functions and responsibilities in relation to the matters specified in the 12th Schedule.

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21. Keeping in view the importance of the environment, it includes air, water, soil, forests, even plants, human beings, micro- organisms, other living creatures, etc. The fields that cover such legislation would be Entry 97 appearing in List I of the Seventh Schedule. All the relevant laws in relation to environment i.e. air, water, noise and environmental protection, have been enacted by the Union Parliament. As per the law stated by a Constitution Bench of the Supreme Court in the case of Rajiv Sarin and Another v. State of Uttarakhand and Others [2011 (8) SCC 708], the Court stated as under:

"34. It is by now a well-established rule of interpretation that the entries in the list being fields of legislation must receive liberal construction inspired by a broad and generous spirit and not a narrow or pedantic approach. It held that each general word should extend to all ancillary and subsidiary matters which can fairly and reasonably be comprehended within it. In those decisions it was also reiterated that there shall always be a presumption of constitutionality in favour of a statute and while construing such statute every legally permissible effort should be made to keep the statute within the competence of the State Legislature.

35. As and when there is a challenge to the legislative competence, the courts will try to ascertain the pith and substance of such enactment on a scrutiny of the Act in question. In this process, it would also be necessary for the courts to examine the true nature and character of the enactment, its object, its scope and effect to find out whether the enactment in question is genuinely referable to a field of the legislation allotted to the respective legislature under the constitutional scheme."

22. Further, it is also a settled rule of law that courts would normally lean in favour of validity of an Act. It would attempt to harmonise two conflicting laws in preference to declaring a law void on account of repugnancy. Of course, where all the ingredients of repugnancy are satisfied stricto sensu and there is no other 22 alternative open to the court but to declare that repugnant portion of the law void or invalid, then alone the court may exercise such discretion. This brings us to analyse what are the essentials of a law being declared void on account of repugnancy under the Constitution. The Supreme Court of India, in the case of Rajiv Sarin and Another v. State of Uttarakhand and Others (supra), while referring to the judgment of the Court in the case of M. Karunanidhi v. Union of India [1979 (3) SCC 431] spelt out the conditions which are required to be satisfied before an Act could fall on the ground of repugnancy within the rigours of Article 254 of the Constitution. The Court held as under:

"45. For repugnancy under Article 254 of the Constitution, there is a twin requirement, which is to be fulfilled: firstly, there has to be a "repugnancy" between a Central and State Act; and secondly, the Presidential assent has to be held as being non-existent. The test for determining such repugnancy is indeed to find out the dominant intention of the both legislations and whether such dominant intentions of both the legislations are alike or different. To put it simply, a provision in one legislation in order to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial or incidental coverage of the same area in a different context and to achieve a different purpose does not attract the doctrine of repugnancy. In nutshell, in order to attract the doctrine of repugnancy, both the legislations must be substantially on the same subject.

46. Repugnancy in the context of Article 254 of the Constitution is understood as requiring the fulfillment of a "Triple test" reiterated by the Constitutional Bench in M. Karunanidhi v. Union of India (1979) 3 SCC 431 @ page 443- 444, which reads as follows:

"24. It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:

1. That there is a clear and direct inconsistency between the Central Act and the State Act.

           2. That such        an    inconsistency   is   absolutely
           irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other."

40. In other words, the two legislations must cover the same field. This has to be examined by a reference to the doctrine of pith and substance."

23. If we apply the doctrine of pith and substance to the present case, it is evident that firstly the two notifications, viz. the notification issued by UT Chandigarh dated 30th July, 2008 and the Rules of 2011 do not cover exactly the same field and also their substance and spirit is quite distinct and different. Not only this, the very object to be achieved under these two notifications is discernible from the very basis on which such notifications have been issued. The notification of 30th July, 2008 just deals with the banning of manufacture, storage, sale and use of plastic carry bags in the interest of the environment while the Rules of 2011 are general in their nature and permit the carrying on of a business of manufacturing, storing and selling of various plastic and polythene items and the conditions which are required to be satisfied before commencement and continuation of such business. We are unable to see any conflict or inconsistency between the two notifications, much less a clear and direct inconsistency between the two. As already indicated, these two notifications are operating in different fields with different objects and implications. 24

24. Even, for the sake of argument, we assume that there is some inconsistency between the two notifications, then it further has to be satisfied that the inconsistency is absolutely irreconcilable and it is impossible to obey one without disobeying the other. None of these ingredients are satisfied in the present case. They can safely be harmonised and construed together and in fact permitted to operate in their respective fields without causing any conflict or contradiction. One regulates the conduct of the business which has to be performed in a licensed manner within the limitations imposed by the regulations while the other is a preventive or prohibitory direction in the interest of the environment and the public at large. One deals with the private business interest while the other with larger public interest. The Rules of 2011 can continue to operate for manufacture, sale and usage of other plastic/polythene items except for polythene carry bags banned under the notification of 30th July, 2008.

25. Now we may examine another aspect of this case which is most fundamental as to whether the provisions of Article 254 of the Constitution are at all attracted in the present case. We have already indicated that there is no entry in either of the Lists which specifically deals with the subject of environment per se. All the legislations on environment have been enacted by the Union Parliament, obviously with the aid of fields specified under Entry No.97 of List I of the Seventh Schedule. The Environment Act is one of such legislations which has been enacted by the Union Parliament. With the powers vested under Section 5 of the 25 Environment Act and as delegated vide notification of 1992, the UT Administration has exercised its power and issued the notification dated 30th July, 2008 banning the manufacture, sale, storage and use etc. of plastic polythene carry bags. Thus, both these notifications have been issued by and under the Union law and in furtherance to the powers delegated by the Central Government. It neither falls in the Concurrent List nor is it in conflict with one of the subjects stated in the fields of List II i.e. within the competence of the State Government. Article 254 can operate only when the subject relates to the fields specified in the Concurrent List and the State law is in conflict with the law enacted by the Union Parliament. The other situation is where the provision of a law made by the Legislature of a State is repugnant to any provision of law made by the Parliament, which the Parliament is competent to enact. Even these two situations of repugnancy are subject to the limitations of Article 254(2). However, it is apparent that either of these two situations do not exist in the present case.

26. For the above reasoning and in view of the law settled by the Supreme Court supra, the argument of the notification dated 30th July, 2008 being repugnant to the Rules of 2011 has no merits and is liable to be rejected.

27. As stated by the Supreme Court in the case of K.T. Plantation Pvt. Ltd. and Anr. v. State of Karnataka [2011 (9) SCC 1], it was held that repugnancy between two statutes would arise if there is a direct conflict between the two provisions of law made by the Parliament and the law made by the State legislature occupying the 26 same field and covering the same subject matter. The Supreme Court further held:

" When the repugnancy between the Central and State Legislations is pleaded, we have to first examine whether the two legislations cover or relate to the same subject matter. The test for determining the same is to find out the dominant intention of the two legislations and if the dominant intention of the two legislations is different, they cover different subject matter then merely because the two legislations refer to some allied or cognate subjects, they do not cover the same field. A provision in one legislation to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial coverage of the same area in a different context and to achieve a different purpose does not bring about the repugnancy which is intended to be covered by Article 254(2). In other words, both the legislations must be substantially on the same subject to attract Article 254."

28. The other contention raised on behalf of the applicants is that the notification dated 30th July, 2008 stands impliedly over-ruled by the notification of the Rules of 2011. In this regard, the learned counsel has placed reliance upon Section 24 of the General Clauses Act, 1897. In order to deal with this argument, we may refer to the judgment of the Supreme Court in the case of State of Madhya Pradesh v. Kedia Leather & Liquor & Ors. [2003 (7) SCC 389] where the Court stated the principles leading to repeal of a statute or a provision by implication and the factors which are required to be considered or questions that are required to be decided by the Court. The Court held as under:

and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provisions, the intention 27 is clear not to repeal the existing legislation. (See: Municipal Council Palai through the Commissioner of Municipal Council, Palai v. T.J. Joseph:[1964]2SCR87, Northern India Caterers (Private) Ltd. and Anr. v. State of Punjab and Anr. : [1967]3SCR399 , Municipal Corporation of Delhi v. Shiv Shanker : 1971CriLJ680 and Ratan Lal Adukia and Anr. v. Union of India: AIR1990SC104 . When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (Personal vel rei) est exclusion alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v. Bradley (1878) 3 AC

944. The continuance of existing legislation, in the absence of an express provision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred.

(See: A.G. v. Moore (1878) 3 Ex. D 276, Ratanlal's case (supra) and R.S. Raghunath v. State of Karnataka and Anr. : AIR1992SC81.

14. The necessary questions to be asked are:

(1) Whether there is direct conflict between the two provisions.

(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;

(3) Whether the two laws occupy the same field.

(See: Pt. Rishikesh and Anr. v. Salma Begum (Smt.) : [1995]3SCR1062 , and Shri A.B. Krishna and Ors. v. The State of Karnataka and Ors. : [1998]1SCR157

15. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does not more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, "unless two Act are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together." (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re: Barry (1936) Ch. 274. To determine whether a later 28 statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The area of operation in the Code and the pollution laws in question are different with wholly different aims and objects; and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side."

29. The Rules of 2011 were framed in supersession of the recycled Plastic Manufacture, Sale and Usage Rules, 1999. The framers of the Rules did not refer to the directions or the notifications issued by the competent authority in terms of Section 5 of the Environment Act. In fact, even while superseding the Rules of 1999, it protected the things done or omitted to be done before such supersession. The effect of these Rules was prospective over-ruling of the 1999 Rules. It is either by implication or otherwise and cannot be extended to a notification issued under Section 5 of the Environment Act, which has been enacted for a different purpose and object. If we consider the present case in light of the questions which, as per the Supreme Court, needed to be answered while considering the question of implied over-ruling, then all the questions would have to be answered in the negative. As already noticed, there is no direct conflict between the two notifications. The Legislature did not lay down any exhaustive code on the subject-matter and both the notifications do not occupy the same field. Once these questions are answered in the negative, the question of implied over-ruling would hardly arise in the present case. Reliance on Section 24 of the General Clauses Act is also irrelevant in the facts of the 29 present case. Firstly, there is no direct or implied over-ruling of the notification dated 30th July, 2008. Secondly, there is no inconsistency between the two notifications. The implied over- ruling can come into play only when it is so expressly stated or it is an inevitable inference from the language of the relevant provision. The earlier enactment should inevitably be in conflict with the subsequent law to the extent that one could not operate in face of the other. The Courts have even held that if the two provisions or laws concerned may be read together and some application may be made of the words in the earlier Act, a repeal will not be inferred. In fact, there is no repealing provision in the Rules of 2011. The reference to supersession of 1999 Rules is only in the preamble of the Rules. Thus, there is no direct or implied intention of the Legislature to render the laws or notifications ineffective, much less invalid. Thus, this argument raised by the applicants also has no substance.

30. The last argument raised before us by the applicants is that the ban is discriminatory and arbitrary on the following two counts:

(a) The ban has been imposed only on manufacture, sale, storage and utilisation of 'polythene carry bags' while plastic polythene products have not been banned.

(b) 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 30 districts of Punjab and Haryana, which are practically part of UT, Chandigarh.

31. The notification dated 30th July, 2008, of course, imposes a ban only on polythene carry bags and not on other packaging plastic/polythene material like plastic rolls and all kinds of industrial and food packaging material. The order banning the manufacture, storage, sale, etc. of polythene carry bags is based upon rational studies undertaken by the expert bodies. The experience of the Government, is even obvious as the UT Administration of Chandigarh felt it impossible to manage the environmental hazards arising from littering of these plastic carry bags and when its efforts in that behalf had failed, it invited objections from all concerned to the draft notification dated 6th December, 2005. Upon due consideration, the authorities had taken a view putting a partial restriction. This would not render it discriminatory inasmuch as even the applicants are carrying on their business in all other fields of plastic manufacturing, sale, etc. except to the extent of polythene carry bags. A reasonable restriction can be imposed wholly or partially. The fact that it has been imposed partially would not render the notification bad in law on the ground of discrimination.

32. Furthermore, there is a direct nexus between the object sought to be achieved by issuance of the notification and the object sought to be achieved under the provisions of the Environment Act. The intention is to stop the menace of littering of plastic carry bags everywhere causing blockage of drains, animal deaths thereby 31 leading to environmental pollution and degradation and causing environmental hazards. The larger public purpose and interest is sought to be achieved by issuance of this notification in comparison to the small economic and business interests of the applicants or persons placed like them. Thus, the private interest must give in to the public interest or the greater good of the society. It is a matter of common knowledge of which the Tribunal can even take a judicial notice, that the plastic carry bags are thrown everywhere indiscriminately and they result in serious environmental hazards. This affects not only public health but also public conveniences. The restriction imposed thus is neither unreasonable nor can it be said that it has no nexus to the object sought to be achieved by the provisions of the Environment Act.

33. Many countries have largely replaced the use of plastic bags by either switching over to re-usable bags and/or 'biodegradable' and/or 'compostable' bags. In our country, share of plastic waste in total municipal solid waste has risen from around half per cent in 1996 to over 9 per cent in 2005. It is reported that almost half of this waste comprises of used plastic bags and packaging material. The environmental consequences of such plastic waste in solid waste are well known as it takes hundreds of years to degrade and fill up landfill sites. Plastic litter can also lead to clogged drains, which result in sanitation, flooding and sewage problems. In addition, plastic bags can harm animals through ingestion and the improper incineration of plastic bags pollutes the air and releases toxic substances. These concerns have caused governments across 32 the world, including the authorities in India, to introduce legislation to limit the use of plastic bags (SANDEE working paper No. 65-11). They have used a variety of regulatory instruments for this purpose which include the mandatory pricing of plastic bags, explicit levies on each bag, taxes at the manufacturing level, discounts on the use of 'own bags', awareness campaigns, command and control approaches and, in some cases, a total ban on the use of plastic bags. The evidence on the effectiveness of such policies world over is not very promising. For example, plastic bag retail levies in Ireland have resulted in a dramatic fall in the demand for plastic bags, and an environmental levy at the point of manufacturing in Denmark has been similarly effective.

34. We cannot find any fault in the issuance of the notification dated 30th July, 2008 by the Administrator, UT Chandigarh, on the ground that the States of Punjab and Haryana have not issued similar notifications. The Chandigarh Administration has no administrative or legislative control over the States of Punjab and Haryana. It is for those States to issue such notifications in that behalf. However, we certainly would require the Chief Secretary of both the States of Punjab and Haryana respectively to consider this aspect and place such restrictions, as they may deem fit and proper to help the cause of environment. Undoubtedly, places like S.A.S. Nagar and Panchkula have become part of the city of Chandigarh and the Administration of these towns/States would be well advised to promulgate such law to bring it in uniformity with the 33 notification issued by the Administration of UT Chandigarh to serve the larger public interest.

35. Further in view of our above discussion, we also consider it appropriate to direct the authorities concerned in all the States to explore the possibility of introducing use of bio-degradable or compostable plastic bags as opposed to polythene plastic bags of any thickness.

36. For the reasons afore-recorded, we find no legal or Constitutional infirmity in the notification dated 30th July, 2008 issued by the Chandigarh Administration. Rather, this is a step towards better environmental administration and in the larger public interest. Therefore, we find these applications without any merit and dismiss the same; however, without any order as to costs.

Justice Swatanter Kumar Chairperson Justice U.D. Salvi Judicial Member D.K. Agrawal Expert Member P.S. Rao Expert Member Ranjan Chatterjee Expert Member New Delhi August 8, 2013 34