In W.P.(C) Nos.23089-KER HC- Kerala HC sets aside Govt Orders putting ban on manufacture, transportation, sale and use of non-woven bags of 60 GSM & above, says inclusion of such bags in list of banned single-use plastic was highly illegal & arbitrary  
Justice N. Nagaresh [10-01-2023]

Read Order: NIBU KASIM AND ORS v. UNION OF INDIA AND ORS 

LE Correspondent

Ernakulam, January 11, 2023: While noting that if any State Government issues executive instructions contrary to the Rules framed by the Central Government, then it would amount to exercise of powers which the Environment Pollution Act, 1986  has prohibited to delegate, the Kerala High Court has set aside the ban on manufacture, transportation, sale and use of non-woven bags of 60 GSM & above

 Justice N. Nagaresh disposed of the instant petitions by observing that the eligibility of the petitioners to manufacture non-woven bags shall be governed by the Plastic Waste Management Rules, 2016 as amended by the Plastic Waste Management (Amendment) Rules, 2021. 

The Petitioners in this case were members of a registered association of the manufacturers of non-woven bags in Kerala. The petitioner in another petition was a Proprietor engaged in the production of non-woven bags. The petitioners were before the High Court aggrieved by GO (MS) dated December 17, 2019 and GO (MS) dated January 27, 2020 whereby the second  respondent  included the non-woven bags in the list of prohibited items. 

 According to the petitioners, non-woven bags are manufactured using food grade granules. Non-woven bag is a food grade item approved by many Government agencies and recognised by the Ministry of Textiles. The petitioners are manufacturing non-woven bags out of Polypropylene and Calcium Carbonate. Polypropylene is a food grade granule and Calcium Carbonate is a natural product and 100% biodegradable under natural process.

The petitioners stated that the Government of India, in exercise of its powers under the Environment (Protection) Act, 1986, had formulated the Plastic Waste Management Rules, 2016. The Rules provide that non-woven plastic carry bags shall not be less than 60 gram per square metre (GSM) with effect from September 30, 2021. The notification further directed that the manufacture, import, stocking, distribution, sale and use of single use plastic including polystyrene and expanded polystyrene commodity shall be prohibited with effect from July 1, 2022. 

The counsel for the petitioners argued that State Rules were already in place when the Central Government made the 60 GSM rule. Under Section 23 of the Environment Protection Act, the Central Government can delegate its powers to a limited extent. A combined reading of Sections 5 and 23 of the Act would show that the State Government has only residuary powers. The Act contemplates regulation alone and there cannot be a complete ban, the Bench said.

After considering the submissions, the Court noted that by going through Section 23 Environment Pollution Act, 1986, it is evident that though the Central Government is competent to delegate its powers and functions under the Act, 1986, the rule making power of the Central Government cannot be delegated. 

When, in exercise of the rule making powers under Section 25, the Central Government has prescribed a minimum standard in GSM for manufacturing of non-woven bags, then under any delegated power the State Government cannot prescribe a different standard which would negate the rules framed by the Central Government. 

“If any State Government issues executive instructions contrary to the Rules framed by the Central Government, it would amount to exercise of powers which the Act, 1986 has prohibited to delegate, the Bench said.

It was further noted that the petitioners had a specific case that the non- woven bags manufactured by the petitioners using Polypropylene and Calcium Carbonate are biodegradable under natural process. 

The Bench referred to the Analysis report dated March 4, 2021 of the CIPET: School for Advanced Research in Polymers (SARP) under the Department of Chemicals and Petrochemicals, Ministry of Chemicals and Fertilisers, Government of India which states that non-woven bags of 60 GSM withstands the cycle load and opined that the non-woven carry bags made of Polypropylene fibre of 60 GSM can be recycled after end of the use.

The Government of India therefore amended the Plastic Waste Management Rules, 2016 by Notification dated August 12, 2021  by which non-woven plastic carry bags less than 60 GSM alone were banned, the Bench noted.

 In the facts and circumstances of the case, the Court found that inclusion of non-woven bags in the list of banned single-use plastic items by Government Orders without regard to the GSM standards and in violation of the provisions of the Plastic Waste Management Rules, 2016 was highly illegal and arbitrary. 

Consequently, the Government Orders dated November 27, 2019 and December 17, 2019 as also the Circular dated January 27, 2020 of the Kerala State Pollution Control Board were set aside to the extent they ban manufacture, transportation, sale and use of non-woven bags of 60 GSM and above.

 The eligibility of the petitioners to manufacture non-woven bags shall be governed by the Plastic Waste Management Rules, 2016 as amended by the Plastic Waste Management (Amendment) Rules, 2021, the Court thus observed.