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IN THE HIGH COURT OF
DELHI AT NEW DELHI
W.P.(C) 6456/2004
07.08.2008
Date of Decision:07th AUGUST, 2008
VINOD KUMAR JAIN ..... Petitioner
Through: Mr. Arvind Shah, adv.
Mr. O.P. Ratra, applicant in person
in CM 3643/2005
versus
UNION OF INDIA and ANR. .....
Respondents
Through: Ms. Pinky Anand with Ms. Smriti
Duggal, Advocates for DPCC
Mr. Suresh Kait, adv. for UOI
CORAM:
HON'BLE MR. JUSTICE T.S. THAKUR
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
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 the Digest? YES
T.S. THAKUR,J:
This writ petition has been filed in public interest. It paints a grim
picture about the failure of the civic agencies in regard to the solid waste
management in Delhi giving the capital of this country the dubious
distinction of being the dirtiest city in the world. It points out that
according to a study conducted by the Central Pollution Control Board, the
gap between the waste generation and management will rise to 64% by 2021
from the present level of 40%, having regard to the current population
growth and the change in urban life style. The petition alleges that
landfill sites are packed with a mixture of non-biodegradable and toxic
waste resulting in contamination of the ground water on account of the
considerable leaching of the solid wastes from these areas. It also leads to
atmospheric pollution and contamination and is thereby a great threat to the
health of the citizens. It proposes effective measures at the grass root
level in fiscal and non-fiscal areas to reduce the production and
consumption of non-biodegradable material and the hazards arising out of the
same. In particular, it refers to the problems arising out of use of plastic
bags in general which are posing major environmental hazard. Inadequacy of
the statutory provisions also is emphasized by the petitioner according to
whom the legislation including the rules framed thereunder need to be
strengthened by suitable amendments to face the challenge arising from the
unregulated and unhindered use of plastic as a packaging material resulting
in growth of waste garbage which civic agencies are unable to handle. It
alleges that plastic waste, when disposed of, remains in the environment as
it is non-biodegradable and enters the food chain thereby resulting in
health risks to the citizens.
Inadequate refuse collection and disposal system also contributes to the
seriousness of the problem. Disposal of plastic waste in streams, canals,
water bodies or by burning compounds the problem. The absence of any
awareness campaign or regulatory control by the civic agencies to prevent
littering of plastic bags, packaged beverages, water bottles, plastic
cutlery, plastic plates used in airlines, railways, wedding parties, mass
gatherings at fast food joints also contributes to a great extent to the
seriousness of the challenge arising out of environmental degradation. The
petition points out that when plastics are burnt, they release a deadly mix
of chemicals to the atmosphere notably dioxin and other poisonous chemicals.
Dioxin is said to be a persistent organic pollutant which causes cancer. It
is released every time chlorinated plastics are produced or combusted. They
travel thousand of miles and go up the food chain causing health hazards for
humans. Absence of any scientific recycling facilities, poor working
conditions, unskilled workforce for such recycling process also add to the
problem. There is, according to the petitioner, no solid based policy in the
country. In any case the policy is ineffective insofar as managing the
problems arising out of waste management in Delhi is concerned. The
petition, therefore, prays for directions for upgrading the waste management
system, effective means to curb the tendency to generate needless waste by
strict legislative measures and also by educating the people at large about
the hazards to environment arising out of absence of a scientific waste
management programme. It prays for a mandamus directing the respondents to
amend the provisions of the Delhi Plastic Bag (Manufacture, Sales and Usage)
and Non-Biodegradable Garbage (Control) Act, 2000 and the Rules framed
thereunder so as to ensure that the same apply and extend not only to
prohibition but also to the manufacture and sale of all plastic bags in
general.
2. The respondents have appeared and filed their counter affidavits.
According to the respondents Municipal Waste Management and Handling Rules,
2000 framed under the Environment (Protection) Act, 1986 regulate the non-
biodegradable waste especially plastic. Recycling of plastic is, in turn,
undertaken as per the provisions of Recycled Plastics Manufacture and Usage
Rules, 1999 as amended in 2003. Rule 6 of the said Rules requires that
recycling of plastic shall be undertaken strictly in accordance with Bureau
of Indian Standards Specifications : IS 4534:1998.
3. In the affidavit filed by Sh. U. Sridharan, Additional Director, Ministry
of Environment and Forests, Government of India, on 10th March, 2005, it is
inter alia pointed out that in compliance with an order of this Court dated
10th November, 2004 the Ministry of Environment and Forests has issued the
Recycled Plastics Manufacture and Usage Rules, 1999 regulating and managing
plastic bags. These rules subsequently amended in 2003 are essentially meant
to regulate carry bags to be used/manufactured in addition to the already
stipulated minimum thickness of 20 microns. The affidavit claims that wide
publicity was given to the notifications on the subject and that several
states have published their separate set of rules to control
non-biodegradable garbage. The Ministry had also placed the rules on its
website for use by the general public. The affidavit refers to various
initiatives taken for propagating Plastic Rules and increasing the awareness
on plastics through various state agencies apart from sponsoring a programme
by the name ?Bhoomi? on ?Doordarshan? and ?Yeh Gulistan Hamara? on the All
India Radio. Enclosed with the affidavit is Annexure 1 which deals with the
steps taken by various states in the country including Delhi where public
notices in Hindi and English are said to have been issued and the Delhi
Plastic Bag (Manufacture, Sales and Usage) and Non- Biodegradable Garbage
(Control) Act, 2000 brought on the statute book to manage plastic waste.
4. An affidavit has been filed even by the Government of N.C.T. of Delhi
sworn by the Deputy Secretary, Department of Environment, Government of NCT
of Delhi which enlists the steps taken by the Government for implementation
of the provisions of the Act aforementioned and the rules framed thereunder.
It also refers to the action taken by civic agencies in the matter of
effective implementation of the provisions of the statute. The affidavit
encloses with it a note that highlights the actions taken by the Municipal
Corporation of Delhi in regard to waste management and segregation of
garbage as also the future plans which the Corporation intends to pursue.
5. A second affidavit filed by Sh. U. Sridhiran, Additional Director of
Environment and Forest on 5th December, 2005 enlists various steps that have
been taken for regulating and managing plastic carry bags and containers. It
also refers to the amendments in the Recycled Plastics Manufacture and Usage
Rules, 1999 and points out that the municipal authorities are responsible
for ensuring compliance with the rules, namely, collection, storage,
segregation, transportation, processing and disposal of municipal solid
wastes in the city. It also points out that the responsibility for
enforcement of the rules in Metro
City is with the Secretary, Ministry
of Urban Development and the District Magistrates for areas within their
jurisdiction. It also states certain additional measures to be taken to make
the entire machinery dealing with the collection and disposal of solid waste
and refers to the proposed constitution of a committee to sort out issues
relating to ?testing protocols? for the biodegradable/degradable plastics in
the country.
6. By an order dated 19th November, 2007 we had, with the agreement of
counsel for the parties constituted a committee headed by Justice R.C.
Chopra, former judge of this Court as convenor and Chairman, Central
Pollution Control Board and Chairman,
Delhi
Pollution Control Committee as its Members. The Committee was requested to
study the issue regarding environmental hazards including health hazards
arising out of use of the plastic bags in the city of
Delhi. It was given the liberty to associate
with its study any institute or expert in the field of plastic/polymer and
to elicit opinion from institutions like the IIT, CSIR, National Chemical
Laboratory of Pune, Bureau of Indian Standards and CIPEP, Chennai or any
other expert or institution which the committee may consider necessary to
consult. The Committee has formulated and answered the following issues in a
detailed report submitted to this Court:
1. Whether plastic bags are per-se injurious to health or hazardous to
environment?
2. Whether degradable/Biodegradable plastic bags are an alternative and can
be introduced without any difficulty?
3. Whether bags made of other materials can substitute the plastic bags and
meet the demand?
4. What are the existing laws to regulate the use of plastic bags in Delhi.
5. Whether recycling of the plastic bags waste is a health/environment
hazard?
6. What are the major health or environmental hazards arising out of the use
of plastic bags?
7. What steps can be taken to check the health and environment hazards
arising out of use of plastic bags in Delhi?
7. The report deals with each one of the above issues and makes its
recommendations in regard to the above. Insofar as issue No.1, viz; whether
plastic bags are per se injurious to health or hazardous to environment, the
Committee has come to the conclusion that plastic, being a chemically inert
substance does not pose any health hazard. It is used worldwide for
packaging of medicines, life saving drugs, childcare products and wide range
of personal care products. Virgin plastic bags are not, according to the
committee, per se injurious to health or hazardous to environment. The same
is not, however, true about recycled/coloured plastic bags which contain
certain chemical additives that are injurious to health and may leach to the
ground and contaminate soil as well as sub-soil water. These findings were
not seriously assailed before us by Mr. Shah appearing for the petitioner.
At any rate, there is no material to suggest that virgin plastic bags are in
any way hazardous to health or to environment, although recycled/coloured
plastic bags have the potential to be hazardous to health and environment
both. Use of recycled bags is in any case already prohibited for carrying of
food items in terms of Section 3 of the Delhi Plastic Bag (Manufacture,
Sales and Usage) and Non-Biodegradable Garbage(Control) Act, 2000. which
reads as under:
?3. Prohibition of throwing garbage in public places, drains sewer etc.
(1) No person, by himself or by any person on his behalf manufacture for
sale, or use any recycled non-biodegradable plastic bags or containers with
or without containing inorganic or organic pigments, plasticizers,
lubricants and stabilizers etc. which are liable to cause poisoning of food
during storing, carrying or packing of any food with in the National Capital
Territory of Delhi.
(2) No licence, for the manufacture, sale of recycled plastic bags referred
in sub-section (1) granted or received under any law before the date of
commencement of this Act, shall entitle the holder thereof or any other
person on this behalf to commence or carry on such business.?
8. All that, therefore, needs to be done is to ensure that the above
statutory provision is made effective by the authorities by taking
appropriate action against all those engaged in manufacture or use of
recycled plastic bags as containers for packing of any food within the
National Capital Territory of Delhi.
9. As regards Issue No. 2 the Committee's report concludes that the
?authorities have not been able to define and prescribe standards for the
degradable and biodegradable plastics in India? Consequently, it cannot be
said that degradable plastics pose no health or environmental hazards. The
Committee has recommended use of that biodegradable plastics should be
encouraged for manufacture/use of plastic bags. As noticed earlier according
to the affidavit filed by Sh. U. Sridhiran, the Government are considering
constitution of aCommittee for sorting out the testing protocols for
biodegradable, degradable plastics and recycling of non-biodegradable
plastic in the country. It is not clear as to whether the Committee has
indeed been constituted and if so whether any progress in the direction of
evolving ?testing protocols? has been made. All that we need to add is that
the Government may expedite the formulation of the protocols referred to in
the affidavit of Sh. U. Sridhiran to provide the missing link in the legal
framework necessary for effectuating the provisions relevant to the
regulation and control or use of degradable and biodegradable plastics in
India.
10. Coming then to Issue No. 3 the Committee has taken the view that plastic
bags are economical, efficient and a popular mode used by the citizens of
Delhi which cannot be withdrawn or banned completely, although other
alternatives can be encouraged and propagated with a view to reducing the
demand/use of plastic bags. The Committee has observed:
?The chaos and problems created by the use of plastic bags in the city of
Delhi are primarily on account of waste generated by plastic bags which
needs efficient handling by the authorities as well as Plastic Manufacturers
Association.?
11. We have no reason to take a different view. A blanket ban on the use of
plastic bags may be premature having regard 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. The
problems arising out of use of plastic bags, as rightly pointed out by the
Committee, is on account of a failure on the part of the authorities in
efficiently handling the plastic waste. The need of the hour, therefore, is
to ensure proper handling of waste and not a complete ban on the use of
plastic bags.
12. The Committee has referred to the legal provisions and noticed that
plastic bags are required to have a thickness of not less than 20 microns
and a size not less than 8 inches x 12 inches according to the Delhi
Legislation. The Rules also provide for registration of the Plastic Bag
manufacturers but the said provisions are not, according to the Committee,
being followed. The Committee has observed:
?These provisions do not appear to be followed by the manufactures as well
as suppliers of plastic bags and as such an effective and vigorous campaign
is required for enforcing these provisions. It would reduce the menace of
non recyclable plastic waste polluting the earth, subsoil water and
atmosphere.?
13. It has also recommended increase of the thickness of the bags to 40
microns as has been done in some other states with a view to reducing the
inflow of plastic bags into solid waste and increasing the segregation and
collection of the said waste by rag pickers for recycling purposes. The
Committee also favours a ban on use of plastic bags in main markets, local
shopping centres, small shopkeepers and street vendors. The Committee has
observed: ?The ban imposed on hotels, hospitals, malls etc. takes care of a
small percentage of plastic bags only in as much as maximum consumption
thereof is through the main markets, local shopping centres, small
shopkeepers and street vendors.?
14. We see no reason to take a different view. 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. The competent authorities from out of the respondents would,
therefore, consider stipulating a minimum thickness of a plastic bag at 40
microns and forbidding use of such bags even in main markets and local
shopping centres. The civic authorities would effectuate the said
prohibition by taking suitable action against those violating the
prohibition and publicizing the legal position by carrying out an awareness
campaign for the benefit of all concerned.
15. While dealing with Issue No. 5, the Committee has taken the view that
there are fairly large number of unauthorized recycling units in operation
in non-conforming areas which use crude methods for recycling of plastic
waste which are health and environment hazards. These unsound recycling
practices, therefore, need to be forbidden by the authorities by taking
suitable action. The Committee's observations, in this regard, are as under:
?Unlincensed recycling units operating from non-conforming areas are using
various methods of heating plastic bags waste, which emit toxic gases posing
a serious environmental/health hazard. The doctrine of sustainable
development heavily leans on precautionary principles and as such it is the
duty of the State to ensure that such unauthorized units are immediately
shut down or are made to shift to conforming areas where they are duly
licensed and recycle the plastic waste as per guidelines with the help of
modern plants and machinery. This Committee, therefore, has no hesitation in
holding that unsound recycling practices are a serious health/environmental
hazard. Those who violate the provisions/norms should be dealt with very
strictly as per law?
16. There is considerable merit in the above recommendation also. In our
opinion, unlicensed recycling units operating from non-conforming areas
using obsolete and unscientific methods for recycling of plastic waste being
health and environmental hazards need to be shut down immediately by the
authorities. The civic agencies as also the Government of Delhi would,
therefore, do well to take up the matter in the right earnest and ensure
that such unlicensed, unauthorized and unscientific recycling units are shut
down immediately and those violating the law suitably dealt with .
17. Insofar as Issue No. 6 framed by the Committee is concerned, it has
recommended increase in the thickness of the plastic bags from 20 to 40
microns by a suitable amendment in the Rules. That recommendation is also,
in our opinion, well made. We were told at the bar by counsel for the
parties that in the State of Maharashtra the minimum thickness of a plastic
bag is 50 microns while in Punjab, Haryana and Chandigarh the thickness of
plastic bag is 30 microns. In the State of Himachal Pradesh, however,
thickness of plastic bags cannot be less than 70 microns. Thickness of
virgin plastic bag is an incentive for the rag pickers to collect and
segregate the same from the garbage for recycling purposes. Thicker the bag
more its resale and recycling value.
18. The Committee has similarly dealt with issue No. 7 and made following
recommendations ?i) Thickness of the plastic bags for manufacture, sale and
use in Delhi may be increased to 40 microns, as has been done in some other
States, so that the plastic bags are more costly and its indiscriminate use
by the vendors of various products is discouraged. It would also improve
retrieval and recycling of the waste of such plastic bags as rag pickers
would find it more remunerative as well as convenient to pick up waste of
such bags. ii) Manufacture and use of biodegradable plastic bags may be
given wide encouragement as their waste is consumed by micro-organisms. Such
plastics are costly but Govt. may introduce incentives and tax/duty
concessions to make these plastics affordable and an economically viable
option for plastic bags manufactures. Such indirect tax benefits may be
provided separately on capital investments, raw materials and finished
products for promoting biodegradable products.
iii) MCD, NDMC and Delhi Cantontment Board which handle and manage the solid
waste/garbage in the city of Delhi may be directed to encourage and support
proper agencies for removal of plastic waste and if possible in every zonal
office/Dhalao they should set up a plastic compaction unit where rag
pickers/agencies may bring the plastic bags waste and get it compacted for
sale to the recyclers of plastic waste. Committee has been informed that
such compaction machines are being manufactured in Delhi and one of such
machines has been found working satisfactorily at Sreekot, Shrinagar, Pauri
Garhwal. Along with compaction units buy-back facilities can also be
provided either by private entrepreneurs or by the State so that after
compaction of plastic waste, the plastic waste may be sold there itself.
Reasonable rates may be fixed for the plastic waste to encourage the rag
pickers and others to collect and sell plastic bags waste. If this proposal
is implemented even the domestic help may be prompted to segregate, store
and then sell plastic bags waste at such centres, to earn some money.
iv) Recycling of plastic waste should be regulated effectively so that there
are no recycling units in non-conforming areas. Strict action should be
taken against unlicensed recycling units. Supreme Court directions should be
complied with to shut down recycling units in non-conforming areas. DPCC
must be provided adequate staff and powers for curbing this menace. The DPCC
officers should have the powers of search, seizure as well as confiscation
of plastic bags which are found to be in violation of the rules. They should
also be empowered to search, seize and confiscate machines/material found
for manufacturing plastic bags in violation of the rules or for recycling of
plastic waste in unlicensed units.
v) Environmentally sound and economically vialble modern recycling units
must be established by licensed plastic bags manufactures or plastic
manufactures associations on the basis of polluter pay principle. Directions
may be issued by the Court in this regard.
vi) Discouraging use
of recycled plastic bags and encouraging usage of virgin
plastic/biodegradable bags may also help. Coloured bags contain metallic
additives which are injurious to health as well as the environment should be
banned totally. Multilayered and metalized pouches also be banned totally.
vii) The used/discarded plastic bags/packaging material should be encouraged
for other segments like manufacturing of plastic furniture, non-critical
household products like dustbins, mats, clothes hangers etc. It should be
used in construction of roads since it blends with bitumen and has given
encouraging results as pointed out by Shriram Institute of Industrial
Research and CPCB. The waste generated by plastic bags can also be used for
making various
items of daily use and handicraft items. It can also be used for
manufacturing doors and windows. It can be used as partial fuel in cement
kilns and blast furnaces of steel plants. Even railway sleepers can be
manufactured by this waste.
viii) Plastic waste can also be used for generating power. This option may
be addressed on priority for generating power through solid waste including
plastic waste as is being experimented by local bodies in Delhi
ix) The proposal
with DPCC for use of plastic waste for making nano particles be examined on
priority basis. The experiment being carried out in Rajkot, Gujarat by M/s
Hanger Bio Engineers Pvt. Ltd. Regarding segregation of plastic waste from
solid waste and its use for power generation requires a closer examination
and adoption if found feasible. In Delhi such projects are the need of the
hour.
x) The major contributors/generators of plastic bags waste like malls,
airports, railways, fast food centres etc. should be asked to make
arrangements for plastic waste collection. They should be made fully
accountable for delivery of plastic bags waste to authorized recycling
units. They may also be directed to use only bags made of biodegradable
plastics.
xi) Alternatives to bags of less than 8? x 12? made of paper/jute cloth
should also be encouraged so that at least small sized plastic bags are not
used. Paper, especially recycled paper, is an option for such smaller bags
so that small size plastic bags do not form part of solid waste in Delhi.
Bags made of recycled paper, jute or cotton may not totally replace plastic
bags but their use in addition to plastic bags by vendors shopkeepers for
certain items would solve the waste problem to a large extent.
xii) Public awareness campaigns may be intensified so that the citizens also
appreciate the health and environmental issues arising out of the use of
plastic bags. They may be educated and motivated to adopt alternatives for
making their daily purchases and avoid accepting plastic bags for each and
every item. They be also motivated to store and dispose plastic waste
separately.?
19. None of these recommendations came under any serious attack from either
side. Some of the above recommendations may require formulation of proper
strategies and schemes by the Government as also the civic bodies. All that
can, therefore, be said about the said recommendations is that the same
deserves to be seriously considered and appropriate decisions taken at the
appropriate level. Some of the recommendations that we have discussed above
being ex facie justified and perfectly rational do not require any further
consideration and may, therefore, have to be accepted straightaway as
already indicated by us in the preceding paragraphs.
20. In the result, we allow these petitions but only in part and to the
following extent:
i) The respondents Government of NCT of Delhi shall issue a proper
notification fixing the minimum thickness of plastic bags at 40 microns in
place of 20 microns currently stipulated.
ii) The respondents, Government of Delhi, the Pollution Control Committee of
Delhi and the civic agencies shall take immediate steps for closure of
unlicensed recycling units operating from non-conforming areas by using
unsound methods for recycling of plastic bags.
iii) Government of India shall expedite the constitution of the committee
for verifying protocols for degradable and biodegradable plastics in India
if the same has not already been done.
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.
v) The other recommendations referred to in the report made by the Committee
appointed by this Court and extracted above shall be examined by the
Government of NCT of Delhi as also the civic agencies and appropriate
actions taken in accordance with law wherever such recommendations are found
feasible. No Costs.
T.S. THAKUR, J
SIDDHARTH MRIDUL, J
AUGUST 07, 2008
anb
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