Uttarakhand High Court
SPA/466/2022 on 3 January, 2023
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
AND
HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI
3RD JANUARY, 2023
SPECIAL APPEAL No. 466 OF 2022
Between:
Sukhivender Kaur Gill ...Appellant
and
State of Uttarakhand & others. ...Respondents
Counsel for the appellant : Mr. Girish Chandra Lakhchaura and Mr.
Aayush Gaur, learned counsel.
Counsel for the respondent Nos. 1 & 3 : Mr. B.S. Parihar, learned Standing
Counsel for the State of
Uttarakhand.
Counsel for the respondent No. 4 : Mr. Ravi Bisht, Advocate, holding brief of
Mr. Aditya Pratap Singh, learned counsel.
JUDGMENT : (per Sri Vipin Sanghi, C.J.)
The present Special Appeal is directed against the
order dated 09.12.2022 passed by the learned Single Judge in
Writ Petition No. 3142 of 2022 (M/S) preferred by the
appellant. The learned Single Judge has dismissed the said
writ petition, wherein the appellant had challenged the order
dated 26.03.2022 issued by the State Pollution Control Board,
imposing a fine of Rs. 5,00,000/- on the appellant, and the
recovery citation dated 09.11.2022 issued by respondent no.
5, to effect recovery of the said fine.
2. The case of the appellant was that he is running a
1
small scale industry, which is manufacturing non woven fabric
(plastic carry bags). For the manufacture of the said product,
the appellant purchases raw material in clippers form, and the
thickness of the non woven fabric is 60 GSM. The respondent
no. 4 conducted inspection of the premises of the appellant
on 26.03.2022, and since the appellant was found to be
conducting its business activities in contravention of the
Uttarakhand Plastic and Other Non Biodegradable Garbage
(Regulation of Use and Disposal) Act, 2013, and the order
dated 14.10.2021 issued thereunder, fine of Rs.5,00,000/-
was imposed by the order dated 26.03.2022.
3. The appellant challenged the imposition of fine on
the ground that the non woven fabric manufactured by the
appellant being of 60 GSM, its manufacture was permissible
under Section 4 (j) of the notification dated 12.08.2021
issued by the Ministry of Environment, Forest & Climate
Change. The said notification brought into force the Plastic
Waste Management (Amendment) Rules, 2021 w.e.f. the date
of publication i.e. 12.08.2021. Post amendment, Rule 4 of
Plastic Waste Management Rules, 2016, insofar as, it is
relevant, reads as follows:
"(1) The manufacture, importer stocking, distribution,
sale and use of carry bags, plastic sheets or like, or
cover made of plastic sheet and multilayered
packaging, shall be subject to the following conditions,
namely:-
2
..........
"(j) non-woven plastic carry bag shall not be less than
60 Gram Per Square Meter (GSM) with effect from the
30th September, 2021."
4. The case of the appellant was that since the Plastic
Waste Management Rules, as amended in 2021, permitted
the manufacture of non woven plastic carry bags - of not less
than 60 GSM, the complete ban imposed by the State Act i.e.
Uttarakhand Plastic and Other Non Biodegradable Garbage
(Regulation of Use and Disposal) Act, 2013, (The Act of
2013), and the order dated 14.10.2020 issued under Section
3 of the Act of 2013, is illegal. According to the appellant,
there is repugnancy in the Environment (Protection) Act, and
the Rules framed by the Central Government under that Act
on the one hand, and the aforesaid Act of 2013 framed by the
State Legislature, and the order dated 14.10.2020 issued
thereunder, and, consequently, the Central Legislation and
the Rules framed thereunder would prevail, over the State
enactment, and the order issued thereunder, as aforesaid.
5. Learned Single Judge has, however, not found
favour with the said submission and has dismissed the writ
petition. Consequently, this Appeal has been preferred.
6. Section 3 of the Act of 2013 reads as under:-
"3. Restriction or prohibition on use of certain
things manufactured from non- biodegradable
material. - (1) The State Government may, by notification,
impose restriction or prohibition on the manufacture, sale,
purchase, storage, distribution and use of any plastic or
other non-biodegradable material within the State of
Uttarakhand, which is contrary to the norms as the State
Government may, by notification, specify.
(2) The State Government may, by notification,
impose requirements on manufacturers, distributors and
other persons, who produce or handle commodities, with
respect to the type, size, labelling and composition of
packaging or with respect to its use and disposal including
standards or norms for material degradability and re-
cyclability."
7. The appellant does not dispute the fact that the
Uttarakhand Plastic and Other Non Biodegradable Garbage
(Regulation of Use and Disposal) Act, 2013, and the
Notification/ order dated 14.10.2020 issued under Section 3
thereof, prohibits 'sale, trade, manufacture, import,
store, carry, transport, use, supply or distribute the
following plastic/ thermocol/ Styrofoam items in the entire
State of Uttarakhand.
(i) Polythene carry bags of any shape (with or without
handle), thickness, size & colour; and non-woven
poly propylene bags.
However, bio-compostable plastic bags and polybags
more than 50 micron thickness used for handling, collection,
transportation of the waste such as bio medical waste, municipal
solid waste and hazardous waste will be excluded.
(ii) Single use disposable cutleries made up of thermocol
(polystyrene), polyurethane, Styrofoam and the like; or plastic
such as plate, tray, bowl, cup, glass, spoon, fork, straw,
knives and stirrer of any size and shape and
(iii) Single use food packaging containers made up of
recyclable plastics of any size, thickness and colour used to
cover, carry, store food/ liquid items (hot & cold).
Note: Compostable plastics shall confirm to the Indian
Standard: IS 17088:2008. The manufacturers or seller of
compostable plastic carry bags shall obtain a certificate from
the Central Pollution Control Board before marketing or selling.
(b) No person shall knowingly or otherwise, litter any public
place with any plastic item allowed under this order'.
(emphasis supplied)
8. The notification dated 14.10.2020 issued by the
State Government narrates the reasons for the aforesaid ban
as follows:-
"Whereas, plastics are non-biodegradable and cause threat
to the ecological system as they reduce the fertility of
soil and thereby hamper the growth of plants, choke
drains and sewer resulting in overflowing of gutters
and if swallowed by cattle and wild animals, they may
cause death by obstructing their intestine;
And whereas, the color pigments present in the plastic
contaminate food products wrapped in them and cause
health hazards and some of it even carcinogenic;
And whereas, plastic products take hundreds of years
for degradation, as they are not biodegradable, they also
block the rainwater infiltration into the soil hindering
recharge of ground water;
And whereas, the plastic bags when discarded can get
filled with rainwater offering ideal breeding ground for
vector borne diseases like malaria, dengue etc. and burning
of plastics also releases carcinogenic and toxic substances
like dioxins, furans and hydrogen cyanide, which pollute air
as well as cause severe and chronic health problems;
And whereas, plastic waste and micro plastic
cause danger to fresh and marine water biodiversity
and also hamper ecosystem services due to spreading of
such waste in and around ecosystems, on tourists places,
heritage sites, eco-fragile areas like- Bugyals, high altitude
areas and on agriculture and forest areas.
And whereas, Government of Uttarakhand has notified
"The Uttarakhand Plastic and Other Non-Biodegradable
Garbage (Regulation of Use and Disposal) Act, 2013" herein
after referred as "Said Act" and vide section 3(1) of the said
Act the State Government may, by notification, impose
restriction or prohibition on the manufacture, sale,
purchase, storage, distribution, and use of any plastic or
other non-biodegradable material within the State of
Uttarakhand, which is contrary to the norms as the State
Government may, by notification specify."
(emphasis supplied)
9. The submission of the learned counsel for the
appellant is that the Environment (Protection) Act, 1986 is a
Central enactment, which has been framed in the light of the
decision taken at the United Nations Conference on the
Human Environment held at Stockholm in June, 1972, in
which India participated, and it was resolved in the said
conference to take appropriate steps for protection and
improvement of human environment. According to the
appellant, it is only on account of the said international treaty
and convention, that the enactment, namely, The
Environment (Protection) Act, 1986 came to be enacted by
the Parliament. Learned counsel for the petitioner submits
that Entry 13 of List I of the Seventh Schedule vests exclusive
competence/authority on the Parliament to make laws in
relation to "Participation in international conferences,
associations and other bodies and implementing of decisions
made thereat". According to the appellant, the Environment
(Protection) Act, 1986 is relatable to Entry 13 of the List I
Union List of the Seventh Schedule. Thus, according to the
appellant, the State Legislature has no competence to frame
the aforesaid enactment viz the Uttarakhand Plastic and
Other Non Biodegradable Garbage (Regulation of Use and
Disposal) Act, 2013.
10. He further submits that there is repugnancy in the
Plastic Waste Management Rules, 2016, as amended, and the
Uttarakhand Plastic and Other Non Biodegradable Garbage
(Regulation of Use and Disposal) Act, 2013, and the order
dated 14.10.2020 issued thereunder, since the Plastic Waste
Management Rules, 2016, as amended, permit the
manufacture and sale of non woven plastic carry bags, which
are not less than 60 GSM; whereas, the State Legislation and
the order dated 14.10.2022 completely ban it.
11. We have considered the submission of learned
counsel for the appellant and find no merit in the same. The
submission of the appellant that the Environment (Protection)
Act, 1986 is relatable to Entry 13 of List I Union List of the
Seventh Schedule is completely misconceived.
12. The executive powers of the Union Government
extend to the matters enumerated in the Union List.
Therefore, by virtue of Entry 13 of List I-Union List, the
Parliament can make laws in relation to participation in
international conferences, associations and other bodies and
to implement decisions made thereat. Similarly, the Union
Government can exercise its executive power, which is
relatable to Entry 13 of the List I of Union List. The subject
matter of the Environment (Protection) Act, 1986 is - as it's
title suggests, Human Environment. It lays down the norms
for saving the Human Environment from pollution and,
consequent degradation. The subject matter of the
Environment (Protection) Act, 1986 is not related to
participation in international conferences, associations and
other bodies, and to implement decisions made thereat. The
Environment (Protection) Act does not seek to lay down any
guideline or norm with regard to participation in International
Conferences or Associations or other bodies. It does not
define what is meant by these terms; it does not lay down
any mandatory or directory procedure to be followed qua
participation in International Conferences or Associations or
other bodies, and how decisions taken thereat would be
implemented; it does not say who will represent India in such
conferences/ associations or meetings of other Bodies; it does
not say how and when the decisions taken at such
conferences/associations would be implemented. None of
these aspects have been touched upon in the Environment
(Protection) Act.
13. When the Parliament framed the Environment
(Protection) Act, it merely recited the background in which
the Environment (Protection) Act was enacted, in its
preamble. From this, it does not follow that the Environment
(Protection) Act is a legislation which is relatable to Entry 13
of List I Union List. The subject matter of Entry 13 of List I-
Union List was not the subject on which Environment
(Protection) Act was legislated. The Environment (Protection)
Act, 1986 is an instance, where India participated in an
International Conference, i.e. the UN conference on the
Human Environment at Stockholm in June, 1972, which
resolved on the appropriate steps to be taken for protection
and improvement of human environment, and, the decisions
taken thereat were implemented by enactment of the
Environment (Protection) Act. Another instance that comes
to mind is The Rights of Persons with Disabilities Act, 2016.
The preamble to this Act reads as follows :-
"An Act to give effect to the United Nations
Convention on the Rights of Persons with Disabilities and for
matters connected therewith or incidental thereto.
WHEREAS the United Nations General Assembly
adopted its Convention on the Rights of Persons with
Disabilities on the 13th day of December, 2006;
AND WHEREAS the aforesaid Convention lays down
the following principles for empowerment of persons with
disabilities,--
(a) respect for inherent dignity, individual autonomy
including the freedom to make one's own
choices, and independence of persons;
(b) non-discrimination;
(c) full and effective participation and inclusion in
society;
(d) respect for difference and acceptance of persons
with disabilities as part of human diversity and
humanity;
(e) equality of opportunity;
(f) accessibility;
(g) equality between men and women;
(h) respect for the evolving capacities of children
with disabilities and respect for the right of
children with disabilities to preserve their
identities;
AND WHEREAS India is a signatory to the said
Convention;
AND WHEREAS India ratified the said Convention on
the 1st day of October, 2007;
AND WHEREAS it is considered necessary to
implement the Convention aforesaid."
14. Similarly, it does not follow that The Rights of
Persons with Disabilities Act, 2016 is an enactment covered
by Entry 13 of List I-Union List, as it does not deal with the
subject matter/ entry enumerated at Entry 13 of List I-Union
List.
15. The subject of environment does not specifically
find mention in any of the Entries of List I-Union List, List II-
State List, or List III-Concurrent List of the Seventh Schedule.
That being the position, the subject of environment would fall
within the competence of the Parliament to legislate upon, by
virtue of Entry 97 of List I-Union List, which is a residuary
Entry, and reads "any other matter not enumerated in List II
or List III including any tax not mentioned in either of those
Lists". Thus, on environment related matters, which are
enumerated in List II, the State Legislature would have
exclusive competence to legislate, and on environment
related matters enumerated in List III, the power to legislate
is concurrent between the Parliament, and the State
Legislature. The pith and substance of the competing
Legislations would have to be examined, to find out whether
they fall within the legislative competence of the legislature
enacting them. Only in case of conflict/repugnancy, the
Parliamentary legislation will prevail. It is a well settled
principle of Constitutional interpretation that
repugnancy/conflict should be avoided, as far as possible,
since the legislative entries in the three lists of the 7th
Schedule should be given widest amplitude in the matter of
interpretation. We may refer to the following judgments of
the Supreme Court on this aspect :
16. In Calcutta Gas Co. (Proprietary) Ltd. v. State
of W.B., 1962 Supp (3) SCR 1, the Supreme Court held as
follows :-
"The entries in the three Lists are only legislative heads or
fields of legislation : they demarcate the area over which the
appropriate legislatures can operate. It is also well settled that
widest amplitude should be given to the language of the
entries. But some of the entries in the different Lists or in
the same List may overlap and sometimes may also appear
to be in direct conflict with each other. It is then the duty
of this Court to reconcile the entries and bring about
harmony between them. When the question arose about
reconciling Entry 45 of List I, duties of excise, and Entry 18 of List
II, taxes on the sale of goods, of the Government of India Act,
1935, Gwyer, C.J., in In re Central Provinces and Berar Act 14 of
1938 [(1939) FCR 18, 42, 44] observed:
"A grant of the power in general terms, standing by itself,
would no doubt be construed in the wider sense; but it may be
qualified by other express provisions in the same enactment,
by the implication of the context, and even by considerations
arising out of what appears to be the general scheme of the
Act."
The learned Chief Justice proceeded to state:
"... an endeavour must be made to solve it, as the
Judicial Committee have said, by having recourse to the
context and scheme of the Act, and a reconciliation at
empted between two apparently conflicting jurisdictions
by reading the two entries together and by interpreting,
and, where necessary, modifying the language of the
one by that of the other. If indeed a reconciliation should
prove impossible, then, and only then, will the non
obstante clause operate and the federal power prevail."
The Federal Court in that case held that the entry "taxes on the
sale of goods" was not covered by the entry "duties of excise" and
in coming to that conclusion, the learned Chief Justice observed:
"Here are two separate enactments, each in one
aspect conferring the power to impose a tax upon goods;
and it would accord with sound principles of
construction to take the more general power, that which
extends to the whole of India, as subject to an exception
created by the particular power, that which extends to
the province only. It is not perhaps strictly accurate to
speak of the provincial power as being excepted out of
the federal power, for the two are independent of one
another and exist side by side. But the underlying
principle in the two cases must be the same, that a
general power ought not to be so construed as to make a
nullity of a particular power conferred by the same Act
and operating in the same field, when by reading the
former in a more restricted sense effect can be given to
the latter in its ordinary and natural meaning."
(emphasis supplied)
17. In Prem Chand Jain v. R.K. Chhabra, (1984) 2
SCC 302, the Supreme Court reiterated the same principle of
interpretation, as follows :-
"8. ....The legal position is well-settled that the
entries incorporated in the lists covered by Schedule
VII are not powers of legislation but "fields" of
legislation. (Harakchand v. Union of India [(1969) 2
SCC 166, 174 : AIR 1970 SC 1453 : (1970) 1 SCR 479,
489] .) In State of Bihar v. Kameshwar [(1952) 1 SCC
528 : AIR 1952 SC 252 : 1952 SCR 889] this Court has
indicated that such entries are mere legislative heads
and are of an enabling character. This Court has
clearly ruled that the language of the entries should
be given the widest scope or
amplitude. Navinchandra v. CIT [AIR 1955 SC 58 : (1955)
1 SCR 829, 836] . Each general word has been asked to
be extended to all ancillary or subsidiary matters
which can fairly and reasonably be comprehended.
(See State of Madras v. Cannon Dunkerley [AIR 1958 SC
560 : 1959 SCR 379, 391] ). It has also been held by this
Court in Check Post Officer v. K.P. Abdulla Bros. [(1970) 2
SCC 355 : AIR 1971 SC 792 : (1971) 2 SCR 817] that an
entry confers power upon the Legislature to legislate
for matters ancillary or incidental, including provision
for avoiding the law. As long as the legislation is
within the permissible field in pith and substance,
objection would not be entertained merely on the
ground that while enacting legislation, provision has
been made for a matter which though germane for the
purpose for which competent legislation is made it
covers an aspect beyond it. In a series of decisions this
Court has opined that if an enactment substantially falls
within the powers expressly conferred by the Constitution
upon the Legislature enacting it, it cannot be held to be
invalid merely because it incidentally encroaches on matters
assigned to another Legislature. (See State of
Karnataka v. Ranganatha Reddy [(1977) 4 SCC 471, 491 :
AIR 1978 SC 215 : (1978) 1 SCR 641, 661] ; K.S.E.
Board v. Indian Aluminium Co. [(1976) 1 SCC 466 : AIR
1976 SC 1031 : (1976) 1 SCR 552] ; Subrahmanyan
Chettiar v. Muttuswami [AIR 1941 FC 47 : 192 1C 225 :
1940 FCR 188] , Prafulla Kumar Mukherjee v. Bank of
Commerce [AIR 1947 PC 60 : 1947 FCR 28 : 49 Bom LR
568] ; Ganga Sugar Corpn. v. State of U.P. [(1980) 1 SCC
223, 232 : (1980) 1 SCR 769, 782])."
(emphasis supplied)
18. The recent judgment of the Supreme Court in Ram
Krishan Grover v. Union of India, (2020) 12 SCC 506,
reiterates the same principles in the following words :-
"24. The entries in the three Lists are not
mutually exclusive. Further, the entries are fields of
legislation that demarcate the area and heads of
legislation. Accordingly, they should receive the
widest construction unless their rigour and import
need to be castrated by competing entries and other
parts of the Constitution. Interpretation of each entry
has to be fair and liberal so as to cover all incidental
and subsidiary matters which can reasonably be said
to have been comprehended in it. The entries should not
be interpreted in a narrow and pedantic sense. "Pith and
substance" doctrine states that if the legislation is
covered by an entry, that is, it is within the permitted
jurisdiction of the legislature, any incidental
encroachment in the rival field has to be disregarded.
Only when wide construction of an entry leads to heads-on-
clash with another entry in the same or different List, the
principle of harmonious construction applies to reconcile the
conflict and to give effect to each of them."
(emphasis supplied)
19. A perusal of List II-State List, and List III-
Concurrent List, would show, that several aspects of
environment are covered both in List II-State List and List III-
Concurrent List. Entry 5 in List II-State List reads "local
government, that is to say, the constitution and powers of
municipal corporations, improvement trusts, districts boards,
mining settlement authorities and other local authorities for
the purpose of local self-government or village
administration". The aforesaid Entry shows that the
municipal governance, through a local government, falls
within the exclusive domain of the State Legislature to
legislate upon. Amongst others, the powers of municipal
corporations, improvement trusts, districts boards, and other
local authorities for the purpose of local self-government or
village administration, can be legislated upon by the State
Legislature. With Entry 5, we may also take note of Entry 6
of List II, which reads "public health and sanitation; hospitals
and dispensaries".
20. Article 243 W of the Constitution is also relevant,
and reads as follows:
"243W. Powers, authority and responsibilities of
Municipalities, etc.- Subject to the provisions of this
Constitution, the Legislature of a State may, by law,
endow-
(a) the Municipalities with such powers and
authority as may be necessary to enable them
to function as institutions of self-government
and such law may contain provisions for the
devolution of powers and responsibilities upon
Municipalities, subject to such conditions as may
be specified therein, with respect to -
(i) the preparation of plans for economic
development and social justice;
(ii) the performance of functions and the
implementation of schemes as may be
entrusted to them including those in
relation to the matters listed in the
Twelfth Schedule;
(b) the Committees with such powers and authority
as may be necessary to enable them to carry out the
responsibilities conferred upon them including those in
relation to the matters listed in the Twelfth Schedule."
(emphasis supplied)
21. The matters enlisted in the Twelfth Schedule to the
Constitution, inter alia, include :-
"6. Public health, sanitation conservancy and solid waste
management."
"8. Urban forestry, protection of the environment and
promotion of ecological aspects."
22. Thus, the State Legislature has the legislative
competence to endow on municipalities the responsibilities to
perform the functions relating to the aforesaid aspects,
subject to the other provisions of the Constitution.
23. Municipal governance by municipal corporations,
improvement trusts, districts boards, and other local
authorities, necessarily entails protection of public health and
upkeep of sanitation in the area of governance by the local
authorities concerned. The effect of the human environment
on public health, cannot be overemphasized. Sanitation has a
direct bearing on the human environment. Thus, aspects
concerning human environment, which impinge upon public
health, and have a direct connection with sanitation, fall
within the realm of the State Legislature to legislate upon.
Thus, in our view, the State Legislature is empowered to
frame legislation on aspects of environment protection, which
have a bearing on municipal governance; public health and
sanitation. The Act of 2013, in pith and substance, is a
legislation covered, inter alia, by Entries 5 and 6 of List II-
State List of the 7th Schedule.
24. Entry 17 of List II-State List reads "water, that is to
say, water supplies, irrigation and canals, drainage and
embankments, water storage and water power subject to the
provisions of entry 56 of List I". The Uttarakhand Plastic and
Other Non-Biodegradable Garbage (Regulation of Use and
Disposal) Act, 2013 is an enactment framed to deal with,
inter alia, the use and disposal of plastic and other non-
biodegradable garbage in the State of Uttarakhand. The
plastic and other non-biodegradable garbage is known to
adversely impact water supplies, irrigation through canals,
and drainage, as such garbage chokes the free flow of water.
It is for this reason that Section 4 of the Uttarakhand Plastic
and Other Non-Biodegradable Garbage (Regulation of Use and
Disposal) Act, 2013 prohibits the throwing of non-
biodegradable garbage in pubic drains, sewers and water
bodies.
25. Plastic and other non-biodegradable waste is also
known to render the soil infertile, and the growth of
vegetation in land polluted with plastic and other non-
biodegradable waste is known to suffer adversely. Entry 18
of List II-State List reads "land, that is to say, rights in or
over land, land tenures including the relation of landlord and
tenant, and the collection of rents; transfer and alienation of
agricultural land; land improvement and agricultural loans;
colonization". Under the aforesaid Entry, it is the State
Legislature, which is empowered to frame legislation, inter
alia, on aspects of "land improvement". It is in the aforesaid
light that Sections 4(2), 6, 7 and 8 of the Uttarakhand Plastic
and Other Non-Biodegradable Garbage (Regulation of Use and
Disposal) Act, 2013 appear to have been framed. Thus, the
Act of 2013, in pith and substance is also an enactment
covered by the fields of Legislation enumerated in Entries 17
and 18 of List II-State List of the 7th Schedule.
26. We may also look at Entries 17A and 17B of List
III-Concurrent List of the Seventh Schedule. The subject
matters thereof are "forests" and "protection of wild animals
and birds". Plastic and other non-biodegradable waste are
known to degrade forests, and also harm wild animals and
birds, who feed on them, or get entangled in such plastic or
non-biodegradable waste, and often suffer mortality.
Therefore, the source of authority, for enactment of the
Uttarakhand Plastic and Other Non-Biodegradable Garbage
(Regulation of Use and Disposal) Act, 2013, can also be
traced to Entries 17A and 17B of List III-Concurrent List.
27. All the aforesaid Entries of List II-State List and List
III-Concurrent List form the basis of the order/ notification
dated 04.10.2021 issued under Section 3 of the Act of 2013.
28. We are, therefore, of the view that the State
Legislature had the legislative competence to enact the
Uttarakhand Plastic and Other Non-Biodegradable Garbage
(Regulation of Use and Disposal) Act, 2013, and merely
because the Environment (Protection) Act, 1986 has been
enacted by the Parliament, that does not take away the
legislative competence of the State Legislature to enact the
Uttarakhand Plastic and Other Non-Biodegradable Garbage
(Regulation of Use and Disposal) Act, 2013.
29. In Ram Krishan Grover (supra), the Supreme
Court has also held as follows :-
"25. Repugnancy arises between a Central and a State Act
when there is a direct and irreconcilable conflict between the
two enactments. It is when there is an irreconcilable conflict
between the two legislations that the Central legislation
prevails by virtue of Article 254 of the Constitution. Such
repugnancy or inconsistency is not to be readily
inferred as the entries in the three Lists permit
incidental encroachment. Consequently, every
attempt must be made to placate the conflict and only
when and in case of oppugnant clash, the Court
should proceed to strike down the legislation as
trespassing beyond its legitimate and legal confines.
26. In Vijay Kumar Sharma v. State of Karnataka [Vijay
Kumar Sharma v. State of Karnataka, (1990) 2 SCC 562] ,
this Court referring to the "pith and substance" doctrine had
held that a provision in a particular legislation in order
to give effect to its dominant purpose may
incidentally encroach on the same subject-matter as
covered by the provision of another legislation. 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). Both the legislations must
be substantially on the same subject-matter for
repugnancy to arise and to attract Article 254. If the
subject-matters covered by the legislations are different,
then merely because the two legislations refer to some allied
or cognate subjects, they do not cover the same field."
(emphasis supplied)
30. Insofar as the submission in relation to repugnancy
is concerned, we do not find any repugnancy in the Plastic
Waste Management Rules, 2016, as amended, on the one
hand, and the provisions of the Uttarakhand Plastic and Other
Non Biodegradable Garbage (Regulation of Use and Disposal)
Act, 2013, and the order issued thereunder. Plastic waste is
a hazardous substance. It is for this reason that the Plastic
Waste Management Rules, 2016 have been framed by the
Central Government under Sections 3, 6 & 25 of the
Environment (Protection) Act, 1986. Rule 4 lays down the
conditions for manufacture, importer stocking, distribution,
sale and use of carry bags, plastic sheets or the like, or
covers made of plastic sheet, and multilayered packaging.
The Central Government has provided in Rule 4 (1) (j) that
non-woven plastic carry bag shall not be less than 60 Gram
Per Square Meter (GSM) with effect from the 30th September,
2021. These Rules do not create a right in any person to
manufacture or trade in plastic bags, sheets etc. It creates a
benchmark by stipulating that non-woven plastic carry bags
less than 60 GSM shall, inter alia, be not manufactured. Only
because the State of Uttarakhand has passed a law
completely banning the manufacture, sale, purchase, storage,
distribution and use of any plastic or other non-biodegradable
material within the State of Uttarakhand, that does not create
any repugnancy with the Plastic Waste Management Rules,
2016, as amended. Since the State of Uttarakhand is an
ecologically sensitive State, it is open to the State to lay down
norms, which are stricter, and lay down standards higher
than those laid down by the Central Government for
application in the State, to prevent and manage pollution
caused by plastic waste.
31. The Plastic Waste Management Rules, 2016, framed
by the Central Government under the Environment
(Protection) Act, can be harmonized with the Uttarakhand
Plastic and Other Non Biodegradable Garbage (Regulation of
Use and Disposal) Act, 2013, and the order dated 14.10.2020
issued thereunder. The Plastic Waste Management Rules,
2016, when read with the Uttarakhand Plastic and Other Non
Biodegradable Garbage (Regulation of Use and Disposal) Act,
2013, and the order dated 14.10.2020 issued thereunder only
mean, that in areas where either there is no ban, or where
higher standards have not been laid down in relation to
manufacture, sale and use of plastic bags, sheets etc., the
minimum standards laid down under the Plastic Waste
Management Rules, 2016, as amended, would be applicable.
However, in areas and jurisdictions where higher standards
have been laid down, or where there is a complete ban, resort
cannot be had to Plastic Waste Management Rules, 2016, as
amended, to claim a right to violate the higher standards or
ban imposed by the Competent Legislature, by referring to
the minimum standards laid down in the Plastic Waste
Management Rules, 2016, as amended.
32. We are, therefore, of the view that there is no merit
in the present Appeal and the same is accordingly dismissed.
___________________
VIPIN SANGHI, C. J.
______________
MANOJ KUMAR TIWARI, J.
Dt: 03.01.2023
A.J.
