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2018 Supreme(Bom) 531
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA, RIYAZ I. CHAGLA, JJ.
Maharashtra Plastic Manufacturers Association through its President & Others - Petitioners
Versus
State of Maharashtra & Others - Respondents
Writ Petition No. 4033 of 2018 with Writ Petition (ST.) No. 4391 of 2018 Ordinary Original Civil Jurisdiction Writ Petition (L) Nos. 1061 of 2018, 1129 of 2018
Decided On : 13-04-2018
For the Petitioners:A.V. Anturkar, Senior Advocate with Sugandh B. Deshmukh, Ajinkya M. Udane, Ranjit D. Shinde, Milind Sathe, Senior Advocate, Melanie D'Souza, Murari Madekar, Sachin Kudalkar i/b. Madekar & Co., Janak Dwarkadas, Senior Advocate with Ankit Lohia, Nishit Dhruva, Prakash Shinde, Niyati Merchant i/by MDP & Partners, Advocates.
For the Respondents:E.P. Bharucha, Senior Advocate with A.B. Vagyani, Government Pleader, Manish M. Pabale, A.G.P., R.A. Salunkhe, A.G.P., E.P. Bharucha, Senior Advocate with P.H. Kantharia, Government Pleader, Geeta Shastri, Additional Government Pleader, Amar Mishra, A.G.P., Deepali Patankar, Asst. to G.P., Atul Singh, Anand Singh, E.P. Bharucha, Senior Counsel.
Headnote:
Constitution of India,1950 - Article 226 - Mysore Forest Act - section 4 of - Claim a licence - manufacture of PET - Court have learned counsel appearing for parties at some length- Considering legal contentions raised in this petitions court issue Rule Advocates representing respondents today waive service- Court have heard counsel appearing for parties on prayer for interim relief- Before court advert to submissions it will be necessary to make a reference to factual controversy in brief- State of Maharashtra enacted Maharashtra Non-Biodegradable Garbage challenge in these petitions Constitution of India is mainly to Maharashtra Plastic and Thermocol Products Manufacture Usage Sale Transport Handling and Storage) Notification for short impugned notification AND WHEREAS Governor of Maharashtra was satisfied that circumstances existed which rendered it necessary for him to take immediate action to make law prevent throwing or depositing non-biodegradable garbage in public drains roads wetland wasteland water bodies places open to public view to regulate use of non-biodegradable material and for matters connected therewith or incidental thereto and therefore promulgated Maharashtra Non-biodegradable Garbage –Held, Collection transportation of banned plastic items or plastic waste of existing stock for recycling to authorized recyclers or industries or scientific disposal- There is no provision made in impugned notification to strictly ensure that individual users are able to immediately dispose of restricted items which are in their possession- local bodies will have to create a proper mechanism use of such restricted items an individual will expose him to criminal prosecution under provision of section said Therefore a limited protection will have to be granted to individuals Special Counsel representing State has canvassed at bar that State will look into suggestions of petitioners and other stakeholders- Court are therefore proposing to direct State Government to look into representations made by petitioners and other stakeholders including individual citizens- If State Government is satisfied that modification of impugned notification is necessary State Government is bound to take necessary steps petitioners or any other citizens or stakeholders make representations seeking modification of impugned notification State shall dispose of said representations at earliest- If representations are made by petitioners within one week from today court direct State Government to consider said representations after holding meetings with representatives of petitioners and take a decision thereon as expeditiously as possible and in any event and communicate said decision to petitioners – Order accordingly
1. We have heard the learned counsel appearing for the parties at some length. Considering the legal contentions raised in this petitions, we issue Rule. The learned Advocates representing the respondents today waive service. We have heard the learned counsel appearing for the parties on the prayer for interim relief. Before we advert to the submissions, it will be necessary to make a reference to the factual controversy in brief.
2. The State of Maharashtra enacted the Maharashtra Non-Biodegradable Garbage (Control) Act, 2006 (for short “the said Act of 2006”). The challenge in these petitions under Article 226 of the Constitution of India is mainly to the Maharashtra Plastic and Thermocol Products (Manufacture, Usage, Sale, Transport, Handling and Storage) Notification, 2018 (for short “the impugned notification”).
3. The preamble of the said Act of 2006 reads thus:
“An Act to prevent throwing or depositing non-biodegradable garbage in public drains, roads, wetland, wasteland, water bodies, places open to public view; to regulate the use of non-biodegradable material and for matters connected therewith or incidental thereto.
WHEREAS both Houses of the State Legislature were not in session;
AND WHEREAS the Governor of Maharashtra was satisfied that circumstances existed which rendered it necessary for him to take immediate action to make a law to prevent throwing or depositing non-biodegradable garbage in public drains, roads, wetland, wasteland, water bodies, places open to public view; to regulate the use of non-biodegradable material and for matters connected therewith or incidental thereto; and, therefore, promulgated the Maharashtra Non-biodegradable Garbage (Control) Ordinance, 2006, on the 27th February 2006.”
(emphasis added)
4. We may note here that in the affidavit-in-reply filed by the State Government in Writ Petition (Ldg.) No.1061/2018 of Shri Sanjay Baliram Sandanshiv, Under Secretary of the Environment Department, he has rightly pointed out that in none of the petitions, there is a challenge to the validity of the said Act of 2006.
5. The provisions of the said Act of 2006 which are relevant for our consideration are sections 3, 4, 9 and 18 which read thus:
“3. Prohibition to throw biodegradable and non-biodegradable garbage in public drains, sewage lines, natural or manmade lake, wetlands -
(1) No person, by himself or through another, shall knowingly or otherwise, throw or cause to be thrown, in any drain, ventilation shaft, pipe and fittings, connected with the private or public drainage works, natural or manmade lake, wetlands, any non-biodegradable garbage or construction debris or any biodegradable garbage by placing in a non-biodegradable bag or container likely to –
(i) injure the drainage and sewage system;
(ii) interfere with the free flow or affect the treatment and disposal of drain and sewage contents;
(iii) be dangerous or cause a nuisance or be prejudicial to the public health; and
(iv) damage the lake, river water or wetland.
(2) No person shall, knowingly or otherwise, place or permit to be placed, except in accordance with such procedure and after complying with such safeguards as may be prescribed, any biodegradable or non-biodegradable garbage in any public place or in a place open to public view, unless,
(a) the garbage is placed in a garbage receptacle; or
(b) the garbage is deposited in a location designated by a local authority having jurisdiction on an area for the disposal of such garbage.
4. Restriction or prohibition on use of certain non-biodegradable material -
5. (1) The State Government may, by notification in the Official Gazette, impose restriction or prohibition on the use of non-biodegradable material, or any other material harmful to environment within the State, which is contrary to the norms, as the State Government may, by notification in the Official Gazette, specify.
(2) The State Government may, by general or special order, impose requirements on manufacturers, distributors and
