Praveen Mittal vs Department Of Environment, Govt ...
2009 Latest Caselaw 3431 Del

        THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 28.08.2009

+      WP (C) 8120/2009


PRAVEEN MITTAL                                             ...    Petitioner


                                   - Versus -


DEPARTMENT OF ENVIRONMENT,
GOVT OF NCT OF DELHI                                       ...    Respondent

Advocates who appeared in this case:-

For the Petitioner : Dr Ashutosh Jai Singh with Ms Urmi Nanchahal. For the Respondent : Mr Parag P. Tripathi, ASG with Ms Ruchi Sindhwani, Ms. Aakanksha Sharma and Mr Amey Nargolker.

CORAM:-

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in Digest ? Yes

BADAR DURREZ AHMED, J

1. This writ petition is directed against the clarification issued by

the Department of Environment, Government of NCT of Delhi, New

Delhi on 20.02.2009, with regard to the use of non-woven bags. The

clarification was issued in the context of the earlier notification dated

07.01.2009, which was issued by the Lt. Governor of the National

Capital Territory of Delhi, in exercise of powers conferred under

Section 5 of the Environment (Protection) Act, 1986, read with

Notification No.U-11030/J/91-UTL dated 10.09.1992 and in purported

compliance of this court‟s order dated 07.08.2008 in WP(C) 6456/2004

entitled Vinod Kumar Jain v. Union of India and Another. The order

dated 07.08.2008 passed by a Division Bench of this court in Vinod

Kumar Jain (supra) pertained to the use of plastic bags and the failure

on the part of civic agencies with regard to solid waste management in

Delhi. The said petition was filed in public interest. By the said order

dated 07.08.2008, the writ petition was disposed of by, inter alia,

directing that:-

"iv) Government of NCT of Delhi shall issue an appropriate notification forbidding use of plastic bags in the main markets and local shopping centres apart from hotels, hospitals and malls where use of such bags is already forbidden."

2. Pursuant to the said direction, the Government of NCT of Delhi

issued the aforementioned notification dated 07.01.2009, the relevant

portion of which reads as under:-

"In exercise of the powers conferred by Section 5 of the Environment (Protection) Act, 1986 read with notification No.U-11030/J/91-UTL dated 10-9-1992 and in compliance of the Hon‟ble High Court of Delhi‟s order dated 7th August, 2008 in WP(C) No.6456 of 2004, the Lieutenant Governor of National Capital Territory of Delhi hereby directs the following:-

2. That the use, sale and storage of all kinds of plastic bags shall be forbidden in respect of the following places in the National Capital Territory of Delhi, namely:-

(a) Five Star and Four Star Hotels.

(b) Hospitals with 100 or more beds except for the use of plastic bags as prescribed under Bio Medical Waste (Management and Handling) Rules, 1998.

(c) All restaurants and eating places having seating capacity of more than 50 seats.

(d) All fruit and vegetable outlets of Mother Dairy.

(e) All liquor vends.

(f) All shopping Malls.

(g) All shops in main markets and local shopping centres.

(h) All retail and whole sale outlets of Branded chain of outlets selling different consumer products including fruits and vegetables.

3. In places other than the aforesaid places and as observed by the Hon‟ble High Court of Delhi only Bio- degradable plastic bags shall be used."

3. Thereafter, certain queries had been raised on behalf of the

Confederation of All India Traders, the Polythene Film Manufacturers‟

Association, the Delhi Mercantile Association and others with regard to

the use of non-woven bags. In response to the said queries, the

impugned clarification dated 20.02.2009 has been issued by the

Department of Environment, Government of NCT of Delhi, New Delhi.

The same reads as under:-

"Subject: Clarification regarding use of Non-woven bags. Sir, I am directed to refer to your queries regarding the above subject. It has been brought to the notice of this Department that after the ban on the use of all kinds of plastic bags, in compliance of the Hon‟ble High Court of Delhi‟s order dated 07.08.2008 there is increase in the use of non-woven types of bags which is also stated to be

non-biodegradable. In order to assess the composition of these kinds of bags, testing was conducted at Shriram Institute of Industrial Research, New Delhi, which has clearly indicated that the composition of such non-woven bags contained Polypropylene to the tune of 98.3% which is again a non-biodegradable material. This fact was discussed in the Consent Management Committee meeting held on 20.2.2009 and it has been decided that such bags are also covered in the ambit of the High Court‟s order and hence shall not be allowed in the Local Shopping Complexes and Main Markets in Delhi. This may clearly be communicated to all your members and may be circulated to them in your communication directing them not to use such bags. This is for information and strict compliance.

Yours sincerely, Sd/-

(M. Dwarakanath) Sr. Sci. Officer"

4. At this juncture, it would be pertinent to note that the said

notification dated 07.01.2009 was the subject matter of challenge in

WP (C) 883/2009 entitled All India Plastic Industries Association and

others v. Government of NCT of Delhi. One of the questions raised in

that writ petition was - whether, on merits, the notification dated

07.01.2009 was invalid in law ? The Division Bench hearing the said

WP(C) 883/2009, by its judgment and / or order dated 14.07.2009,

answered the question in the negative. In other words, the Division

Bench upheld the validity of the notification dated 07.01.2009. The

Division Bench observed that:-

"There can be no doubt that the limitations imposed are in public interest and have, apparently, been enforced in several other parts of India also. Merely because some

commercial interests of the Petitioners are diluted does not mean that there is no public interest in issuing the impugned notification."

Consequently, the Division Bench found no good reason to strike down

the impugned notification, i.e., the notification dated 07.01.2009, and

dismissed the writ petition. The said Division Bench decision in the

case of All India Plastic Industries Association (supra) considered

direction (iv) issued by the earlier Division Bench on 07.08.2008. In

All India Plastic Industries Association (supra), the Division Bench

clearly held:-

"The intention of the earlier Division Bench was clearly to forbid the use of plastic bags completely in eight broadly categorized areas. This clearly expressed in direction (iv)."

In the said decision dated 14.07.2009, it was also observed as under:-

"40. The true test, in these circumstances, would be this: Can the direction be sustained without the „offending‟ words on the basis of the contents of the judgment? In our opinion, the answer to this is in the affirmative. It appears to us that the earlier Division Bench was conscious of the fact that "A blanket ban on the use of plastic bags may be premature having regard to the to the fact that plastic bags are indeed part of the commercial milieu in the city and cannot be completely banned without providing cheap and acceptable alternatives." It is for this reason that the earlier Division Bench did not ban the use of plastic bags all over the city - it restricted the ban only to a few specified areas. The logic of this is to be found in the following words from the decision of the earlier Division Bench: "If plastic bags are unacceptable in hotels, hospitals and malls, there is no reason why they should be permitted in main markets and local shopping centres. In that view forbidding use of plastic bags even in main markets and local shopping

centres would, therefore, help in dealing with the menace of plastic garbage in Delhi."

41. At this stage, we need to remind ourselves that the earlier Division Bench was concerned with (1) the difficulty in the management of solid waste caused, inter alia, by plastic bags - not necessarily degradable or non- degradable plastic bags, and (2) the possibility of a total ban on the use of plastic bags in Delhi. The solution arrived at by the earlier Division Bench was that (1) the management of solid waste caused, inter alia, by plastic bags is possible if the use of plastic bags is curbed in some specified areas, and (2) a complete or a blanket ban on the use of plastic bags is inadvisable. We see no difficulty, per se, in accepting both these conclusions which were arrived at after hearing all affected parties."

5. According to the petitioner, the non-woven bags manufactured by

it, would not strictly fall under the category of "plastic bags" since they

do not have the essential characteristics of plastic. According to the

petitioner, plastic is made of film grade propylene. After the film is

formed, it is stitched to make plastic bags. On the other hand, non-

woven bags, such as those manufactured by the petitioner, are made of

fibre grade propylene (350 FG). The said fibre grade propylene cannot

be used to make plastic film and is only used for the purposes of

making non-woven fabric / yarn, which, according to the petitioner, is

altogether different from plastic. The further contention of the

petitioner is that the non-woven propylene fibre bags are breathable and

porous and that water can pass through them. Consequently, they

would not choke the sewage system. The non-woven polypropylene

fibre bags are made out of polypropylene fibres and, although they are

not woven, but are bonded together, the end product is essentially a

fabric.

6. The learned counsel for the petitioner also placed reliance on

Tariff Heading 56.03 of the Central Excise Tariff, to indicate that their

product was classified as "textile fabric". This was in an attempt to

show that the non-woven polypropylene fibre bags manufactured by

them were not really plastic bags as contemplated by the High Court in

its order dated 07.08.2008 in WP(C) 6456/2004 as also in the

notification dated 07.01.2009. The petitioner also submitted that the

product manufactured by them had a soft fabric feel and was strong,

washable and printable and that it was also 100% recyclable and

degradable, though not bio-degradable.

7. It was further contended on behalf of the petitioner that the

judgment of this court dated 07.08.2008 has been misunderstood by the

respondent in the sense that the spirit of that judgment is not to ban

plastic bags altogether, but to find a suitable alternative for plastic bags.

According to the petitioner, the non-woven polypropylene fibre bags

are a suitable alternative to plastic bags made out of polypropylene

film. With regard to the decision of this court in the case of All India

Plastic Industries Association (supra), the petitioner clearly submitted

that it did not dispute the findings therein in respect of the notification

dated 07.01.2009 issued in pursuance of the earlier judgment of

07.08.2008, whereby the prohibition of use of plastic bags had been

extended to shopping malls, main markets and local shopping centres.

The learned counsel for the petitioner submitted that the challenge is

not directed against the notification of 07.01.2009, but against the

clarification whereby the petitioner‟s product is sought to be brought

within the ambit of "plastic bags". According to the learned counsel

for the petitioner, the petitioner‟s product, i.e., non-woven propylene

bags, are not strictly plastic and, therefore, cannot be covered under the

said notification dated 07.01.2009. It was further contended that the

impugned clarification has sought to bring the product of the petitioner

within the ambit of the said judgment of this court and the notification

dated 07.01.2009, not on the ground that it is plastic, but on the ground

that it is non-biodegradable. It was further reiterated that the spirit of

the judgment dated 07.08.2008 was that an alternative to plastic should

be found and that the petitioner‟s product is, essentially, an alternative

to plastic bags and ought not to be covered within the ban in terms of

the notification dated 07.01.2009.

8. Mr Parag Tripathi, the learned Additional Solicitor General

(ASG), who appeared on behalf of the respondent, submitted that the

polypropylene non-woven bags are clearly within the ambit of the

expression "plastic bags" inasmuch as they contain 98.3%

polypropylene. He submitted that this fact, which is mentioned in the

impugned clarification, has not been assailed. The clarification dated

20.02.2009, clearly indicates that in order to assess the composition of

such kind of bags, testing was conducted at Shriram Institute of

Industrial Research, New Delhi, which has clearly indicated that such

non-woven bags contained polypropylene to the extent of 98.3%,

which, again, is a non-biodegradable material. He submitted that non-

woven bags possess similar properties to that of plastic bags. He

submitted that use of non-woven polypropylene fibre is as harmful as

propylene bags or plastic bags made out of propylene film. Both fall

under the category of "plastic" and both are non-biodegradable. With

regard to the Central Excise classification, the learned ASG submitted

that the said classification as a textile has been done for specific

purposes, and the same cannot be used to make a distinction between

non-woven bags and plastic bags. He submitted that while

polypropylene fibre can be moulded in such a manner to form non-

woven textiles, which have a fabric like structure, it does not mean that

they lose their property of being a plastic all the same. The learned

ASG referred to the definition of "polypropylene" as per the New

Lexicon Webster‟s Dictionary of English Language. According to the

said dictionary, "polypropylene" means:- "a thermoplastic resin that is

a moisture-resistant, hard, tough plastic used to make moulded objects

in plates, fibres, film, rope and toys". He also referred to the Delhi

Plastic Bag (Manufacture, Sales and Usage) and Non-biodegradable

Garbage (Control) Act, 2000 (hereinafter referred to as „the Delhi

Plastic Bag Act‟). Section 2(h) of the said Delhi Plastic Bag Act

defines "non-biodegradable garbage" to mean waste, garbage or

material, which is not bio-degradable garbage and includes "plastic

material", such as polyethylene, nylon, PVC, polypropylene, pet etc.,

which are not capable of being easily destroyed by the action of living

organisms, light, heat, moisture, radiations, oxidations or combination

of all these factors and which are more specifically included in the

Schedule of the said Act. The Schedule to the said Act lists items

which fall under the category of "non-biodegradable garbage".

Polypropylene is indicated at S.No.4. It was, therefore, contended that

polypropylene was non-biodegradable and was a plastic material.

Thus, non-woven bags, which contain 98.3% polypropylene, would

clearly be covered within the ambit of the expression "plastic bags"

and, more particularly, "non-biodegradable plastic bags". The learned

ASG, therefore, submitted that the writ petition ought to be dismissed.

9. Having considered the arguments advanced on behalf of the

parties, the key question that has to be answered is - whether the non-

woven bags made out of polypropylene fibre would fall within the

ambit of the expression "plastic bags"? It is an admitted position that

the non-woven bags, which form the subject matter of this writ petition,

comprise of 98.3% polypropylene. Consequently, it would not be

wrong to say that the non-woven bags in question are essentially non-

woven polypropylene bags. The definition of polypropylene given in

the New Lexicon Webster‟s Dictionary makes it clear that propylene is

a plastic and is used to make moulded objects in various forms. These

forms include plates, fibres, films, ropes and toys. Polypropylene

fibres are used for the manufacture of these non-woven bags.

Polypropylene film is used for making plastic bags as they are normally

understood. Whether it is polypropylene fibre or it is polypropylene

film, the end product made out of it would remain to be plastic,

provided the end product predominantly contains polypropylene,

whether fibre or film. In the present case, the admitted position is that

the non-woven bags comprise of 98.3% polypropylene. Therefore, the

conclusion is simple that the end product is nothing but plastic. Since

the products manufactured by the petitioner are admittedly bags, they

would fall within the expression "plastic bags".

10. We may also point out that the clarification dated 20.02.2009 was

really not necessary. This is so because when we consider the question

of prohibiting the use of plastic bags in main markets and local

shopping centres, the same is provided in paragraph 2 of the

notification dated 07.01.2009. The said paragraph 2 clearly stipulates

that the use, sale and storage of "all kinds of plastic bags" shall be

forbidden in respect of, inter alia, all shops and main markets and local

shopping centres. Thus, whether the non-woven bags were bio-

degradable or non-biodegradable, would be irrelevant for the purposes

of paragraph 2 of the notification dated 07.01.2009. All that was

needed to be seen was - whether the non-woven bags fell within the

category of "plastic bags" or not ? It did not matter, in the least, as to

whether they were degradable or non-biodegradable. The question of

bio-degradable plastic bags is only relevant for the purposes of

paragraph 3 of the notification dated 07.01.2009, which refers to „all

other places‟ not mentioned in paragraph 2 of the said notification.

11. In any event, the petitioner‟s non-woven polypropylene bags

would be covered in the expression "all kinds of plastic bags" as

appearing in paragraph 2 of the said notification. Since the non-woven

bags are admittedly not bio-degradable, they cannot be used at other

places in Delhi also in view of paragraph 3 of the notification dated

07.01.2009. The argument that the petitioner‟s product is porous and

that water can pass through the same is of no consequence because that

is not the consideration which is to be taken into account while

construing the notification dated 07.01.2009. Paragraph 2 of the said

notification, as already indicated above, refers to "all kinds" of plastic

bags. Once the petitioner‟s product falls within the ambit of "plastic

bags", it is immaterial as to whether it is porous or whether it is a

textile. The petitioner‟s argument that non-woven polypropylene bags

are an alternative to plastic bags also does not appeal to us. The non-

woven polypropylene bags are plastic bags in themselves and,

therefore, they cannot be a substitute for plastic bags as suggested by

the learned counsel for the petitioner.

12. In view of the foregoing, the writ petition is dismissed. No order

as to costs.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J August 28, 2009 dutt